New Requirements for characterising overriding mandatory Provisions under Article 16 of the Rome II Regulation: some Remarks from Case HUK-COBURG-Allgemeine Versicherung II (C-86/23)
Giovanni Chiapponi
Should legal Privilege be used as a Sword or a Shield when considering Taxpayers?: Belgian Association of Tax Lawyers and Others (C-623/22)
Yvette Lind
Whistleblower APA’s legal Battle against Retaliation and Contract non-renewal in the European Parliament: TU v. European Parliament (T-793/22)
María Casado García-Hirschfeld
The Implications of Tour Operators’ Insolvency on Passengers’ Right to a Refund after validly cancelling a Package Trip. HDI Global and MS Amlin Insurance, (C-771/22 and C-45/23)
Delphine Defossez
VAT Base Reductions in complex Pharmaceutical Contributions Schemes: Novo Nordisk AS (C-248/23)
Álvaro Merino García & Darya Budova
Is a ‘Socio’ of FC Barcelona an ‘interested Party’ entitled to lodge a State Aid Complaint for Breach of financial fair Play Rules by other football Clubs?: PBL and Abdelmouine / Commission (C-224/23 P)
Sébastien Thomas
SYMPOSIUM ON THE SELECTION OF EU JUDGES AND THE 255 COMMITTEE:
(Not quite) In Defence of the Article 255 Panel
Kieran Bradley
Virtues and vices of the 255 Committee – are we asking the right questions?
Henri de Waele
A necessary Committee in Need of a necessary Upgrade
Daniel Sarmiento
SYMPOSIUM ON THE 2024 REFORM OF THE STATUTE OF THE COURT OF JUSTICE OF THE EU:
2024 Reform of the Court of Justice: historical and normative Underpinnings
Paul Craig
THE LONG READ:
Digitalizing Judicial Cooperation in Criminal Matters: Nailed it on the first try?
Silvia Allegrezza & Lorenzo Bernardini
HIGHLIGHTS OF THE WEEK
IN-DEPT H
New Requirements for characterising overriding mandatory Provisions under Article 16 of the Rome II Regulation: some Remarks from Case HUK-COBURG-Allgemeine Versicherung II (C-86/23)
Giovanni Chiapponi
Background
In HUK-COBURG-Allgemeine Versicherung II (C-86/23), the Court of Justice (the ‘Court’) introduced some requirements to qualify a rule as an overriding mandatory provision under Article 16 of Regulation No 864/2007 (‘Rome II Regulation’).
As a consequence of a car accident occurred in Germany, where their daughter passed away, two Bulgarian citizens seeking compensation of 250,000 euro initiated legal proceedings before Bulgarian courts against a company established in Germany that insured the driver and paid to the claimants an amount of 5,000 euro for their psychological loss. Contrary to the judgment of the First Instance court of Sofia, the court of Appeal of Sofia dismissed the latter claim stating that the appellants did not prove any pathological harm due to mental pain and suffering, which, under the German law applicable in accordance with Article 4 of the Rome II Regulation, is a necessary requirement for compensating non-material damages. This decision has been challenged before the Bulgarian Supreme court, which first observed that, unlike the German applicable law at hand, under Bulgarian law compensation for non-material damages is determined by courts based on fair criteria. In particular, according to the settled national case law, this allows compensation for all mental pain and suffering without the need to prove that the harm resulted indirectly in pathological damages to the health of the victim. The Supreme court further noted that under Bulgarian law the amount usually awarded for the non-material damages to parents for the death of their child in a road traffic accident is approximately 61,000 euro, whereas under German law the compensation cannot exceed 5,000 euro.
Against this backdrop, as relevant substantial differences had emerged between Bulgarian and German law on how to compensate non-material damages, the Bulgarian Supreme Court suspended the proceedings and submitted a request for preliminary ruling to the Court of Justice. The referring court asked, in essence, whether a national provision, such as the Bulgarian one, under which compensation for non-material damages suffered by the close family members of a person who died in a road traffic accident is determined by the court on the basis of the principle of fairness, may be regarded as an overriding mandatory provision within the meaning of Article 16 of the Rome II Regulation.
Judgment
In its reasoning, the Court defines – largely following the approach of Advocate General Szpunar in his Opinion – the criteria for interpreting the notion of overriding mandatory provisions under Article 16 of the Rome II Regulation, which exceptionally justifies a deviation from the general rule applicable to non-contractual obligations (the lex loci damni as provided for by Article 4 of the Rome II Regulation) in case the application of the law of the forum is necessary. Given the silence of the EU legislator on the conditions to apply Article 16 of the Rome II Regulation, the Court introduces a number of elements which aim at guiding national courts in characterising overriding mandatory provisions.
First, the Court observes that, according to its settled case law (notably case Da Silva Martins, C-149/18 ) and in compliance with the objective of the Rome II Regulation, Article 16 must be interpreted restrictively. In this regard, the Court specifies that overriding mandatory provisions can be applied only when the national court seized, based on the factual elements at hand in the proceedings, assesses that the legal situation examined has sufficiently close links with the lex fori
Second, by transposing the solutions adopted under Article 9 of Regulation No 593/2008 (‘Rome I Regulation’) to Article 16 of the Rome II Regulation, the Court points out that in order to identify an overriding mandatory provision within the meaning of Article 16 of the Rome II Regulation, national courts must find, based on a detailed analysis of the wording, general scheme, objectives and the context in which the national provision concerned was adopted, that it is of such importance in the national legal order of the forum that it justifies a departure from the law designated pursuant to Article 4 of that Regulation. From such assessment, it should emerge that the essential interest concerned in the case at stake cannot be achieved by applying the law that would apply pursuant to the general conflict-of-laws rule of the Rome II Regulation; the only possibility to protect the above essential interest is to apply the overriding mandatory provision, the application of which is thus absolutely necessary.
Third, the Court notes that an overriding mandatory provision should be applied in exceptional circumstances where, as stated in Recital 32 of the Rome II Regulation, considerations of public interest justify it. Notably, the Court makes it clear that the reference made by the EU legislator to considerations of public interest has a broad meaning as it does not only envisage the protection of public interests of particular importance, such as those relating to the political, social or economic organisation of the Member State of the forum, but also covers national provisions protecting individual interests. In this respect, it must clearly arise from the analysis of the rules at hand that they ensure the individual interests of a category of persons corresponding to an essential public interest.
Finally, the Court, by recalling its interpretation in Unamar (C-184/12), highlights that in the event that the legislation applicable under Article 4 of the Rome II Regulation is covered by an EU directive, this rule can be derogated in favour of an overriding mandatory provision under Article 16 of the Rome II Regulation only if it results that the legislator of the State of the forum held it to be crucial in its legal order, in light of the nature and objective of such mandatory provision, to grant the person in question protection going beyond that afforded
by the directive at hand. Nevertheless, the Court explicitly states, as it emerges from its judgment in HUKCOBURG-Allgemeine Versicherung I (C-577/21), that the latter hypothesis is not met in the pending case where the Bulgarian law at hand cannot be regarded as having been adopted to transpose Directive No 2009/103
Against these premises, the Court concludes that the referring court, in order to characterise the Bulgarian law at hand as an overriding mandatory provision under Article 16 of the Rome II Regulation, should, first, check that the legal situation in question has sufficiently close links with its law, and then find, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that national provision was adopted, that respect for it is regarded as crucial in its legal order, on the ground that it pursues an objective of safeguarding an essential public interest that cannot be achieved by the application of the law that would apply pursuant to Article 4 of that Regulation (German law).
Comment
In its ruling, the Court contributed to reinforce the autonomous interpretation of overriding mandatory provisions under Article 16 of the Rome II Regulation as it went beyond the elements of the definition resulting so far from the interpretation – applied by analogy – of Article 9 of the Rome I Regulation.
As a preliminary requirement for applying Article 16 of the Rome II Regulation, the Court mentioned the need to establish that the situation concerned presents a close link with the lex fori, a link justifying the exceptional application of such provisions. In particular, the court seized must verify, from the circumstances taken as a whole, if these links with the law of the forum exist in concreto. As pointed out by AG Szpunar in his Opinion in case C-86/23, it is therefore not possible to qualify in abstracto rules as ‘overriding mandatory provisions’ or to determine, also in abstracto, whether recourse must be had to Article 16 of the Rome II Regulation.
The second condition set out by the judgment at stake for interpreting Article 16 of the Rome II Regulation is that the court seized should verify, based on a detailed analysis of the wording, general scheme, objectives and the context in which the national provision concerned was adopted, whether the application of the overriding mandatory provision in the law of the forum is absolutely necessary to achieve its goal. In this regard, a further caveat is made by the Court, which emphasised that if the law applicable under Article 4 of the Rome II Regulation is covered by an EU directive, the application of Article 16 of the Rome II Regulation is possible only if the overriding mandatory provision at stake offers a protection going beyond that afforded by that directive. It follows that the possibility to pursue the same goal by applying the general conflict of laws rule provided for in Article 4 of the Rome II Regulation would exclude the application of Article 16 of the Rome II Regulation. As already pointed out in the literature, this leads to the conclusion that overriding mandatory provisions are not rules of immediate application, but only rules of necessary application. National courts should not apply such rules simply because the protected interest dictates it, but first establish whether the applicable foreign law already protects the interests at stake.
The Court also dealt with a debated question in the literature by including in the scope of Article 16 of the Rome II Regulation provisions aimed at ensuring the protection of individual rights and interests as long as such rules relate to an essential public interest.
What ultimately arises from the decision in the case at hand is that it is not possible to qualify a priori under Article 16 of the Rome II Regulation an overriding mandatory provision in the lex fori; it is rather the seized court that should characterize it in concreto on a case-by-case basis depending on the specific circumstances at hand.
Giovanni Chiapponi is legal administrator at the Court of Justice of the European Union and Researcher at the University of Florence. The views expressed here are personal to the author and do not represent the official position of the Court of Justice of the European Union.
SUGGESTED CITATION: Chiapponi, G.; “New Requirements for characterising overriding mandatory Provisions under Article 16 of the Rome II Regulation: some Remarks from Case HUK-COBURG-Allgemeine Versicherung II (C-86/23)”, EU Law Live, 03/10/2024, https://eulawlive.com/ op-ed-new-requirements-for-characterising-overriding-mandatory-provisions-under-article-16-of-the-rome-ii-regulation-some-remarks-from-casehuk-coburg-allgemeine-versicherung-ii-c-86-23/
Should legal Privilege be used as a Sword or a Shield when considering Taxpayers?: Belgian Association of Tax Lawyers and Others
(C-623/22)
Yvette Lind
Introduction
The case at hand concerns Council Directive (EU) 2011/16 in relation to cross-border tax arrangements. The directive establishes a system of cooperation between the national tax authorities of the Member States and lays down the rules and procedures to be applied when exchanging information for tax purposes. The directive has been amended on several occasions and the most recent concerns tax transparency rules for crypto-asset transactions (DAC8).
Belgian Association of Tax Lawyers and Others is the second time the Belgian Constitutional Court has raised questions to the Court of Justice of the EU (‘Court of Justice’ or ‘the Court’) concerning the validity of the Directive 2011/16 in relation to cross-border tax arrangements and its fifth amendment through DAC6 that covers the mandatory disclosure and automatic exchange of taxation information among EU Member States related to reportable cross-border arrangements.
The fact that a national constitutional court has asked for such guidance from the Court of Justice is not new when considering the recent introductions of directives in the area of taxation. In fact, it is very likely that we will see an increase in these actions over time given the rapid introduction of such tax directives. Many of these directives, including DAC6, have been instigated by the developments at OECD and G20 level –commonly referred to as the Base Erosion and Profit Shifting (‘BEPS’) project and this naturally causes some concerns when considering –for instance– the traditional legislative process and the consideration of fundamental tax principles which may vary between differing jurisdictions given individual constitutions. The most recent directive – Council Directive (EU) 2022/2523 (known as the EU Minimum Tax Directive) will face similar actions from national constitutional courts. It is probable that the German Constitutional Court will raise questions on the validity of the EU Minimum Tax Directive in the light of the ability-to-pay principle.
In the Belgian Association of Tax Lawyers and Others case the Belgian Constitutional Court raised the issue of whether certain aspects of DAC6 are compatible with the principles of equality and non-discrimination in addition to the principle of legality in criminal matters and finally the principle of legal certainty and the right to private life. In short, the Court was asked to consider the taxes covered by DAC6, the DAC6 terminology, the proportionality of DAC6, and the legal professional privilege rules and notification. I will focus on the latter –the
legal professional privilege rules and notification– exclusively henceforth. In the Belgian Association of Tax Lawyers and Others case this is dealt by the Court as question four.
The history of (Belgian) resistance towards DAC6
C-694/20 (often referred to as the first DAC6 case) was launched by the Orde van Vlaamse Balies and Others and addressed the notification requirement of a lawyer-intermediary who is bound by legal professional privilege. In this case, the Court ruled that the obligation of a lawyer-intermediary to notify other non-client intermediaries involved did indeed infringe the right to respect for communications with their client. In the second case,
C-623/22 that was decided on 29 July 2024, the Belgian Constitutional Court asked for additional clarity on legal privilege when asking whether other intermediaries subject to legal professional privilege –for instance tax advisors and accountants– would also be included under the protection offered by the first case. In other words, do the mandatory reporting arrangements posed by DAC6 also infringe the right to respect for communications with their client when considering other intermediaries than lawyers?
The Judgement
The fourth question posed in the case concerned the obligation to notify as laid down in Article 8ab(5) of DAC and whether intermediaries who are not lawyers yet still bound by legal professional privilege under national law can be extended the same treatment as lawyers.
The Court notes that the language versions of Article 8ab(5) diverge. The English language version uses the expression ‘legal professional privilege’ which must be regarded as referring, in the context of EU law to the professional secrecy of lawyers and other professionals who could be regarded in the same way as lawyers. Of importance is that the professional in question is authorised, under the applicable national law, to ensure legal representation of a client before the national courts. The Maltese and Romanian language versions employ the English expression. The Greek version refers to ‘professional secrecy of lawyers under national law’. In contrast to this, the other eighteen language versions contain expressions referring, in essence, to professional secrecy applicable under national law, without any reference to the professional secrecy of lawyers. Given these differing interpretations and the wording of Article 8ab(5) there is no clear or unequivocal answer to which professionals that are concerned.
Given this ambiguity, the Court judges that Article 8ab(5) –in the light of Article 7 of the Charter and C-694/20 (the first DAC6 case)– applies only to persons who pursue their professional activities under one of the professional titles referred to in Article 1(2)(a) of Directive 98/5 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained.
In conclusion, the Court of Justice confirms the first DAC6 case and that the legal professional privilege only applies to lawyers within the meaning of Article 1(2)(a) of Directive 98/5.
Concluding remarks
It should be noted that following the outcome of C-694/20, there has already been implemented adjustments to legal professional privilege in DAC6 via Council Directive (EU) 2023/2226 of 17 October 2023 (known as DAC8). Under these amended notification rules, an intermediary bound by legal professional privilege should notify their client, if that client is an intermediary, or in the case there is no such intermediary and the client is the relevant taxpayer. These new rules are to be transposed into national legislation by 31 December 2025.
From a legal standpoint this case –and the issues raised in connection to it– highlights the need to now more than ever (re)consider taxpayer protection given the rapid introduction of EU directives on taxation. This entails a need to balance taxpayer protection on the one hand and the protection of tax bases in addition to ensuring effective tax collection within the EU on the other. Additionally, the outcome of the case reiterates the need to consider national (tax) practices when drafting additional tax directives as this case could be interpreted as an erosion of legal professional privilege, or at least an erosion of how widely it can be used by professionals.
Yvette Lind is a Professor of Law at the Department of Law and Governance at BI Norwegian Business School. She specializes in tax law and has an expertise in international taxation, EU tax law, and EU state aid law. She has a distinctive expertise in Scandinavian tax law as she has researched and taught tax law in Sweden, Denmark, and Norway.
SUGGESTED CITATION: Lind, Y.; “Should legal Privilege be used as a Sword or a Shield when considering Taxpayers?: Belgian Association of Tax Lawyers and Others (C-623/22)”, EU Law Live, 02/10/2024, https://eulawlive.com/op-ed-should-legal-privilege-be-used-as-a-sword-or-a-shield-whenconsidering-taxpayers-belgian-association-of-tax-lawyers-and-others-c-623-22/
Whistleblower APA’s legal Battle against Retaliation and Contract non-renewal in the European Parliament: TU v. European Parliament (T-793/22)
María Casado García-Hirschfeld
An Accredited Parliamentary Assistant (‘APA’) who was employed by a Member of the European Parliament (‘MEP’) but whose mission was to assist several MEPs (grouping) within a delegation to the European Parliament reported cases of harassment and financial irregularities involving an MEP. He was transferred under the responsibility of the delegation’s chairperson under an interim measure adopted by the Parliament’s DirectorateGeneral for Personnel.
After denouncing to the Director General of DG Personnel the alleged retaliation he had suffered at the hands of the Delegation’s management following his denunciation of financial irregularities and harassment, he was discharged at his request, but not transferred to another post in the Parliament, as he had requested. The APA’s request for contract renewal was also denied.
The APA brought an action before the General Court of the European Union. In support of its action, the APA relied on six pleas in law.
Among them, the APA challenged the non-renewal of his contract and the implied refusal to recognise his whistleblowing status and to adopt protective measures in addition to the measure of the discharge from his duties.
The APA also claimed compensation of €200,000 for breach of the rules on the protection of whistleblowers and the confidentiality of his identity.
The general provisions implementing the Staff Regulations adopted by the appointing authority.
Parliament, like the other European institutions, may adopt general implementing provisions (‘GIPs’), which primarily concern the implementing measures expressly provided for in certain specific provisions of the Staff Regulations and which are adopted pursuant to Article 110(1) of the Staff Regulations.
In the present case, Article 22(c) of the Staff Regulations provides that each institution shall set up a procedure for dealing with complaints by officials concerning the way they have been treated after or as a consequence of the fulfilment by them of their obligations under Articles 22a or 22b. These procedures shall be binding in so far as they do not lay down rules derogating from hierarchically superior provisions.
Therefore, if the GIPs are not complied with, the General Court may declare the decision unlawful for failure to comply with them.
The APA complained that the European Parliament (the ‘Parliament’) had not informed him of the action taken on his complaints of harassment and financial irregularities. He claimed that, in accordance with Article 22b of the Staff Regulations and its implementing provisions, the Parliament should have set him a deadline for dealing with his request and should have reacted appropriately after examining his complaint.
The Parliament, for its part, took the view that these obligations no longer applied once the applicant had referred the matter directly to OLAF. The European Parliament maintained that, under Regulation (EU) No 883/2013, it could not investigate in parallel with that of OLAF.
However, the applicant contested this interpretation and claimed that the Parliament should have informed him of the measures taken even after the matter had been referred to OLAF.
Accordingly, the General Court held that the Parliament’s conduct was unlawful in that it failed to apply Article 22(c) and the GIPs in relation to the applicant’s status as a whistleblower with regard to the Parliament’s duty to inform.
The General Court also held that the Parliament should have informed the applicant of the measures taken and the time limits, even after the matter had been referred to OLAF, and that the Parliament had therefore failed to fulfil its obligation to inform the applicant in accordance with its own internal rules.
Finally, the General Court states that the institution must take all necessary measures to ensure that whistleblowers enjoy balanced and effective protection against any form of retaliation and should have respected the right to confidentiality.
Conclusions
In this case, the General Court clarified that whistleblower protection automatically applies to anyone reporting potentially illegal activities. Therefore, the Parliament did not need to formally decide if the person had whistleblower status.
The General Court also concluded that if the whistleblower provides credible evidence of suffering damage due to the adoption of the transfer measure, it is the institution’s responsibility to prove that it has fulfilled its duty to protect that person by taking sufficient measures.
Additionally, the General Court reiterated its jurisprudence, confirming that in cases concerning allegations of harassment and financial irregularities, the initiative to renew an Accredited Parliamentary Assistant’s contract belongs exclusively to the Members of Parliament. MEPs cannot be obliged to collaborate or continue to collaborate with APAs they have not freely chosen, as this employment relationship is governed by a bond of trust.
Ultimately, the General Court found that the applicant suffered moral damage caused by the Parliament’s illegal actions, estimating the compensation ex aequo bono at €10,000.
This ruling shows that the Parliament still has some way to go to ensure that it puts in place a procedure that effectively protects whistleblowers and takes careful account of the fact that these individuals, especially the most vulnerable such as APAs, may lose their jobs and suffer reputational damage.
María Casado García-Hirschfeld is a lawyer registered at the Bars of Madrid and Brussels. She is the Director of the National University of Distance Education (UNED) associated center in Brussels and Member of the Federal Commission of Mediation (CFM) in Belgium.
SUGGESTED CITATION: Casado García-Hirschfeld, M.; “Whistleblower APA’s legal Battle against Retaliation and Contract non-renewal in the European Parliament: TU v. European Parliament (T-793/22)”, EU Law Live, 1/10/2024, https://eulawlive.com/analysis-whistleblower-apas-legal-battleagainst-retaliation-and-contract-non-renewal-in-the-european-parliament-tu-v-european-parliament-t-793-22/
The Implications of Tour Operators’ Insolvency on Passengers’ Right to a Refund after validly cancelling a
Package Trip. HDI Global and MS Amlin Insurance, (C-771/22 and C-45/23)
Delphine Defossez
The Court of Justice of the European Union (the ‘Court of Justice’ or the ‘Court’) rendered its judgment on a request for a preliminary ruling from the Bezirksgericht für Handelssachen Wien (Austria) and from the Nederlandstalige Ondernemingsrechtbank Brussel (Belgium) regarding the interpretation of Article 17(1) of Directive (EU) 2015/2302 regarding the insolvency of tour operators in HDI Global and MS Amlin Insurance, (Joined cases C-771/22 and C-45/23).
In both cases at hand, passengers booked package trips for travels which should have occurred in 2020 and paid in full. Due to the spread of COVID-19 and related warnings issued by the relevant authorities, both travellers cancelled their package holidays and requested reimbursement from their tour operators. Under Article 12(2) of Directive (EU) 2015/2302, the passengers were entitled to a full refund. In Austria, Flamenco refused to refund the passengers and was declared insolvent in 2022. In Belgium, Exclusive Destinations was declared insolvent shortly after the passengers requested a refund. The consumers then turned to the tour operators’ insurers to reimburse them for their payments. The insurers refused on the basis that the insurance companies only covered failures to provide travel services due to the insolvency of the organisers. The Austrian and Belgian courts asked the Court of Justice to interpret the Package Travel Directive. Those cases were joined for proceedings.
The key point of contention was whether Article 17, paragraph 1 of Directive (EU) 2015/2302 also included consumers who cancelled their trips before the insolvency occurred. The Court of Justice started by reiterating that the passengers were entitled to a full refund under Article 12(2) of the Directive. The Court noted that there is only a need to interpret EU law when the wording is not ‘absolutely plain’.
Turning to Article 17, paragraph 1, the Court noted that unlike other provisions in the Directive, the term used in that specific Article is ‘relevant services’ and not ‘travel services’ which indicated a broader scope and ‘encompassing other services provided by travel organisers such as refunds.’ As the wording is not plain, the Court felt it was necessary to examine the context of the provision and objectives and origins of the Directive.
The Court of Justice first interprets Article 17, paragraph 1, within its broader context by analysing other paragraphs of the same provision and related recitals and provisions of the Directive. Importantly, the Court ruled that recitals 39 and 40 embody the requirement of effectiveness of the security by ensuring that passengers are ‘fully protected’ against insolvency. Article 17 paragraph 2 requires the security to cover reasonably foreseeable
costs. Consequently, any refund is a foreseeable amount of payment which may be affected by the travel organiser’s insolvency.
The Court agreed with the Advocate General that if the security did not cover refunds for cancellations made before insolvency, it would undermine the effectiveness of the passengers’ right to a full refund in cases of unavoidable circumstances. Moreover, any other interpretation could dissuade travellers from exercising their right of termination. Finally, if such security was not extended to situations such as the one in hand, the requirement of Article 5 –namely to inform travellers that ‘if the organiser … becomes insolvent, payments will be refunded’–would be unnecessary and misleading.
Analysing the predecessor –Directive 90/314– the Court noted that the previous Directive did not exclude consumers’ refund claims from insolvency protection. Consequently, a restrictive interpretation of Article 17(1) would go against one of the main objectives of the Directive which is to ensure a high level of consumer protection.
Finally, relying on the principle of equal treatment, the Court of Justice noted that it would be unfair to differentiate between passengers whose trips are cancelled due to insolvency and those whose claims cannot be fulfilled. In both situations, consumers are exposed to financial risks as a consequence of the travel organiser’s insolvency. Those situations should be regarded as comparable and cannot be subject to different treatment unless objectively justified –which was not possible in this case.
Following this judgment, the position is now clear: Passengers who terminated their contract before the insolvency was declared but were not refunded are protected by Article 17(1) of the Directive. In other words, a passenger’s refund is secured and they are entitled to their refund despite insolvency – even if the reimbursement does not come from the tour operator itself but from its insurance. Insurers should not be too worried as the ‘reasonable foreseeability’ test will still be applicable.
Delphine Defossez is an Assistant Professor of EU law at the Northumbria University. She is the author of “The Law and Regulation of Airspace Liberalisation in Brazil: What is the Way Forward?” As well as various articles in the field of passengers’ rights.
SUGGESTED CITATION: Defossez, D.; “The Implications of Tour Operators’ Insolvency on Passengers’ Right to a Refund after validly cancelling a Package Trip. HDI Global and MS Amlin Insurance, (C-771/22 and C-45/23)”, EU Law Live, 01/09/2024, https://eulawlive.com/analysis-the-implicationsof-tour-operators-insolvency-on-passengers-right-to-a-refund-after-validly-cancelling-a-package-trip-hdi-global-and-ms-amlin-insurance-c-771-22/
VAT Base Reductions in complex Pharmaceutical Contributions
Schemes: Novo Nordisk AS (C-248/23)
Álvaro Merino García & Darya Budova
On 12 September 2024, the Court of Justice of the European Union (the ‘Court of Justice’ or the ‘Court’) handed down a judgment in Novo Nordisk (C-248/23). In this case the Court deals with a question whether ex lege payments made by pharmaceutical company to the public health insurance system, related to public supply of medicinal products, is eligible for the reduction of taxable base of the Value Added Tax according to Article 90 of Directive 2006/112/EC (‘VAT Directive’).
Novo Nordisk is a Danish manufacturer and distributor of medicinal products. It sells its products through wholesalers, who then sell them to pharmacies, who in turn sell them to patients. In this case, the medicines are sold at a price that is subsidised by the Hungarian health insurance agency. However, Novo Nordisk is legally obliged to provide a financial contribution consisting of a percentage of the subsidy granted to final consumers (as well as some other contributions, the VAT treatment of which is not controversial). The contribution is paid to the health agency and is collected by the tax authorities.
In this context, Novo Nordisk requested a reduction on the amount of VAT base by the same amount as the payment it has to make to the health agency. The company argued that these payments represented a reduction in the consideration received for the distribution of its medicinal products. The application was rejected by the Hungarian tax authorities on the grounds that the payments made by Novo Nordisk constituted an ex lege payment to finance budgetary and health objectives. Consequently, it was considered a tax and not eligible for reduction of the VAT base.
Novo Nordisk appealed the administrative decision to the High Court of Budapest, which subsequently asked the Court of Justice whether the VAT Directive precludes national legislation that does not allow a reduction in the VAT base for such payments.
The first examined whether the ex lege contributions are a tax within the meaning of Article 78 of the VAT Directive. At this point, the Court analyses whether the contributions made by Novo Nordisk and the supply that gives rise to the obligation to pay VAT (selling medicines to patients) are directly connected. It concluded that the taxable event of the contributions and the VAT was the same (i.e. distributing subsidised medicinal products) and the said contributions, thus, should be considered a tax within the meaning of Article 78 VAT Directive and be included in the tax base.
However, for the Court, the above conclusion did not preclude the possibility of the taxable base still being reduced in these cases. Instead, the Court firstly recalls that it has already determined that similar contributions
were eligible for the price reductions ex. article 90 of the VAT Directive (Boehringer Ingelheim (C-462/16 and C-717/19). Further, the Court reasons that the complex scheme of payments does not break the direct link between the supply made and the consideration. It is clear for the Court that Novo Nordisk is waiving a proportion of the consideration paid by the wholesaler and it would be contrary to the principle of neutrality to require payment of VAT on an amount higher than that.
In this ruling, the Court has established a new precedent on payments that reduce the taxable amount of VAT, as defined in Article 90 of the VAT Directive, for complex pharmaceutical payment arrangements.
Álvaro Merino García tax lawyer in a law firm in Madrid
Darya Budova is a Senior Associate at an international law firm, specialised in VAT and customs law.
SUGGESTED CITATION: Merino García, Á. and Budova, D.; “VAT Base Reductions in complex Pharmaceutical Contributions Schemes: Novo Nordisk AS (C-248/23)”, EU Law Live, 04/10/2024, https://eulawlive.com/analysis-vat-base-reductions-in-complex-pharmaceutical-contributionsschemes-novo-nordisk-as-c-248-23/
Is a ‘Socio’ of FC Barcelona an ‘interested Party’ entitled to lodge a State Aid Complaint for Breach of financial fair Play Rules by other football Clubs?: PBL and Abdelmouine / Commission (C-224/23 P)
Sébastien Thomas
In the interesting judgment in PBL and Abdelmouine / Commission ( C-224/23 P), the European Court of Justice (the ‘Court’) had the opportunity to further clarify the notion of ‘interested party’ entitled to lodge a complaint of illegal State aid to the Commission, as defined in Article 1(h) of Regulation 2015/1589
The facts of the case – which are easily understandable for any football enthusiast, and even more for Fútbol Club Barcelona (‘FCB’) supporters and fans of his most emblematic football player, Lionel Messi – are the following: Penya Barça Lyon: Plus que des Supporters (‘PBL’) is an association whose purpose is to ‘bring together supporters’ of FCB, a professional football club based in Barcelona (Spain) and constituted as a not-for-profit association. Mr Abdelmouine is a member of PBL. Since 3 March 2020, he is also a socio (contributing member) of FCB. On 8 August 2021, Mr Lionel Messi, a football player working for FCB, announced his departure from that club and his recruitment by Paris Saint-Germain Football Club (PSG), a professional football club established in Paris (France). On the same day, Mr Abdelmouine lodged a complaint with the Commission, in which he informed the Commission of the existence of alleged State aid from France in the form of the non- enforcement of certain financial fair play rules of the Union of European Football Associations (‘UEFA’), enabling PSG to recruit Mr Messi.
The Commission rejected his complaint as inadmissible as it could not be registered as a ‘formal complaint’ lodged by an ‘interested party’ within the meaning of Article 24 § 2 of Regulation 2015/1589.
Seized of an action of annulment against that decision, the General Court of the EU (the ‘General Court’) rejected the applicant’s action by judgment of 8 February 2023 ( T-538/21).
Willing to go all the way, the applicants brought an appeal against that judgment before the Court of Justice.
After easily rejecting some of the applicants’ pleas on appeal, the Court examined the third ground of appeal, relating to an infringement of Article 1(h) of Regulation 2015/1589.
The applicants argued, in essence, that they set out in a clear, precise and substantiated manner, both before the Commission and before the General Court, the various reasons why it had to be considered that, in his capacity as socio of FCB and taking account of the rights, powers and obligations specifically attached to that status, as are
stipulated in FCB’s articles of association, Mr Abdelmouine was a person whose moral, financial and economic interests and actual situation could be affected by the grant of the aid which allegedly benefitted PSG, and which caused damage to FCB, by allowing it to recruit Lionel Messi.
The Court first recalled its case-law according to which, the concept of ‘interested party’ under Article 1(h) of Regulation 2015/1589, includes ‘any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations’ (C-284/21 P, para. 58).
Second, it follows from the clear wording of Article 1(h) of Regulation 2015/1589 that that concept of ‘interested party’ does not include only the specified categories of legal or natural persons mentioned in that provision, but also any other person whose interests might be affected by the grant of that aid (para. 57 of the judgment).
The Court further recalls that the notion of ‘interested party’ refers to an indeterminate group of addressees, which may include any person claiming that his or her interests may be affected by the grant of alleged aid (323/82, para. 16, and C-284/21 P, paras. 59 and 60), provided, however, that that person demonstrates, to the requisite legal standard, that the requirements for it to be regarded as an ‘interested party’ are satisfied and, in particular, that the alleged aid is likely to have a specific effect on his or her situation (C-284/21 P, para. 60).
To that end, the person who relies, in a given case, on the status of ‘interested party’ must demonstrate to the requisite legal standard:
• first, that it is indeed the grant of the alleged aid, as such, which may affect his or her interests, to the exclusion of any other conduct or measure, in particular any legally distinct measure which may have been adopted by the Member State granting that aid, even if such a measure is in fact linked to that aid (para. 59);
• secondly, that person must show that it is indeed ‘his’ or ‘her’ interests, that is to say, interests which are personal to him or her, which may be affected by the grant of the alleged aid; that said, that requirement does not exclude the possibility, for certain types of legal persons, such as trade unions or associations, of relying on interests of a categorical or even general nature, provided that such interests fall within the objects of those legal persons and therefore overlap with a personal interest of those legal persons (paras. 60 and 61);
• thirdly, the person in question must demonstrate that the grant of the alleged aid actually has or, at the very least, is potentially likely to have a specific effect on his or her interests, by highlighting both that actual or potential impact itself and the causal link which it has with the grant of the aid at issue (para. 62).
Applying these principles to the case at hand, the Court confirms the General Court’s finding that the evidence submitted by the applicants did not demonstrate that a socio of FCB, such as Mr Abdelmouine, could incur financial liability in the event of the club’s losses and, on that basis, had a direct financial interest in the preservation of FCB’s financial situation (para. 67).
The applicants tried to argue, nevertheless, that persons who, like Mr Abdelmouine, have the very particular status of socio of a professional football club which has opted for a model of a not-for-profit association, like FCB, are not in a situation comparable to that of a shareholder of a company and must not therefore be regarded, by analogy with such a situation, as being incapable of being affected as regards their interests by the grant of aid such as that which was granted in the present case to PSG.
The Court rejected that argument, however, on the ground that it cannot put into question the conclusion to which came the General Court (para. 79).
In essence, the Court agrees that the public interest in the defence of a sport such as football and its values could not validly be relied on by Mr Abdelmouine, as a mere socio of FCB, in order to show that he is an ‘interested party’ (para. 69).
Interestingly, at the end of the judgment, the Court also dealt with the applicants’ last plea in law, by which they claimed that that one of the persons who participated in the preparation of their action integrated the team of the member of the General Court who exercised the role of Judge-Rapporteur in the case giving rise to the judgment under appeal, before or immediately after the delivery of that judgment. While the Court rejected that argument as inadmissible as its content is not sufficiently clear and precise to enable it to exercise its review, it found that their claims, if proved, would attest to the existence of a factual situation raising undeniable and serious legal issues (para. 96).
Sébastien Thomas is a Senior Advisor in EU & Competition Law in a major law-firm in Luxembourg. Previously, he served as a law clerk for different judges both at the General Court and at the Court of Justice. He was also a Member of the Legal Service of the European Commission (State aid team) and worked as an academic assistant at the College of Europe (Bruges). Sébastien is the author of a book in State aid law (in French) as well as several articles and case-law analysis in this field.
SUGGESTED CITATION: Thomas, S.; “Is a Socio of FC Barcelona an ‘interested Party’ entitled to lodge a State Aid Complaint for Breach of financial fair Play Rules by other football Clubs?: PBL and Abdelmouine / Commission (C-224/23 P)”, EU Law Live, 30/09/2024, https://eulawlive.com/analysisis-a-socio-of-fc-barcelona-an-interested-party-entitled-to-lodge-a-state-aid-complaint-for-breach-of-financial-fair-play-rules-by-other-football-clubspbl-and-ab/
SYMPOSIUM
SYMPOSIUM ON THE SELECTION OF EU JUDGES AND THE 255 COMMITTEE
(Not quite) In Defence of the Article 255 Panel
Kieran Bradley
The authority accumulated over the years by the Article 255 panel contributes significantly to the legitimacy of the CJEU. While the criteria the panel has adopted are in themselves unexceptionable, the ‘20-year rule’ for appointment to the Court of Justice is based on a dubious analogy with the Union civil service and hinders the achievement of demographic diversity on the Union bench. However, appointing to the Court a candidate who has been rejected by the Article 255 panel would be a grave and possibly irreversible step. Where a government takes the view that the panel has manifestly erred in rejecting a nominee, it could provide the panel with further information to convince the panel to reconsider its opinion.
Authority beyond text
Until very recent times, the Article 255 panel had led a charmed life. Without exception, its opinions on the suitability of candidates for appointment to the CJEU, both positive and negative, over the fourteen years of its operation, have been followed by the Member State governments, notwithstanding – or perhaps because of – the fact that it has rejected more than one-fifth of the candidates nominated for a first term of office. This stands in marked contrast, for example, to the record of the European Parliament, a Union institution rather than an ancillary body, whose opinions on the suitability of candidate members of the Court of Auditors have on several occasions been overridden by the Council. One might even have argued that the authority of the panel’s opinions was such that the duty to follow them comes close to comprising a constitutional convention, if there were such a thing in Union law. That authority has recently come under question, with the rejection of a number of nominees who, in the view of certain eminent commentators, are manifestly qualified for appointment to the CJEU.
Requirements for appointment
The Treaty requirements for appointment to the Court of Justice date from the Treaty of Paris. Of these, the expression ‘jurisconsult of recognised competence’ is rather obscure. In all probability, it is a truncated version of Article 2 of the Statute of the International Court of Justice, the prime exemplar of an international court. Appointment to the ICJ was open to those who were qualified to accede ‘in their respective countries to the highest judicial offices’ or who were ‘jurisconsults of recognized competence in international law’. In 1951, requiring recognised competence ‘in the law of the European Community’ would, obviously, have made little sense. Be that as it may, this cryptic locution has opened the door of the Court of Justice to academics, government legal advisers, Union officials, and all manner of high-level lawyers in non-judicial positions.
While the panel asserts that the requirements of Article 253 TFEU are ‘exhaustive’, the six criteria it relies on in effect supplement the Treaty provisions. This is obviously the case, for example, of ‘a sufficient knowledge of Union law’, which is missing from Article 253 TFEU but is an explicit requirement, for example, for appointment to
the arbitration panel under the 2019 Brexit Withdrawal Agreement. Compliance with some of the criteria can be tested objectively, such as language skills, or the ‘aptitude to work in an international environment’ as the panel defines it; the candidate’s legal capacities may be assessed on the basis of their recent publications, and the brief presentation of up to three ‘complex legal cases’ the candidate has handled which the panel demands in advance of the interview. Only the criterion governing the candidate’s professional experience has a quantitative element, ‘20 years’ experience of high-level duties’. A presumption of insufficiency of experience can be overridden ‘where candidates demonstrate exceptional legal capabilities’.
An analogy too far
The panel’s guidelines on professional experience are based on an explicit analogy ‘between the office of judge and positions of an equivalent level in the European Civil Service’ (7th Activity Report). The speed at which an official who ascends the ranks of the Union civil service reaches such a level may depend on a variety of factors and choices which have little to do with their legal acumen and competence, such as the rules on promotion of officials, the availability of worthwhile senior positions, or the candidate’s nationality. Nor does it follow that such officials would necessarily have twenty years experience of high-level duties, as the analogy appears to assume. Even the most talented official may have to undergo years of more menial duties before reaching a level which could be compared with that of a Union judge. The justification for the application of a rule based on the vagaries of the Union civil service to a candidate coming from academia or qualified for appointment to, or a fortiori sitting on, a supreme court is not immediately obvious. Moreover, while the panel purports to take account of the ‘length and nature’ of the candidate’s professional experience, a 20-year guideline may discount, or at least undervalue, the nature of such experience, whereas precocious appointment to a supreme court or recognition of academic brilliance, could be taken as indicative of the very qualities the Court might need.
Diversity undermined
The value of judicial diversity is hardly up for discussion. The 2015 Regulation doubling the number of General Court judges took a first tentative step towards promoting gender balance among its members. A recent study on apex court appointments concludes that, while it is justified to require ‘a reasonable number of years of prior experience’ for such appointments, ‘there is no cause for a minimum age of eligibility’ (pp. 8 and 7). The Article 255 panel examines the suitability of individual nominees and is not realistically in a position to promote diversity per se on the Union bench, beyond not giving ‘preference to any particular type of professional path’. However, by adopting, and applying too strictly, an age-based criterion for evaluating professional experience, the panel may stifle demographic diversity, at a time when disaffection with the European Union is already widespread amongst younger citizens.
A word to the wise
It has been suggested that, where the panel’s opinion appears to the Member States governments to be manifestly erroneous, they should simply override it. Even if they were unanimously minded to do so – and who’s to say
a right-thinking government might not object on principle to overriding the panel – they should balance the value of appointing a single ‘suitable’ judge against the negative repercussions such a decision would have on the authority of the panel.
According to the Court’s case law, the fundamental right to a fair trial requires that the ‘rules governing the appointment of [CJEU] judges [must] not give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges to external factors and their neutrality with respect to the interests before it’(Valančius, C-119/23, para. 71). The panel provides the only (very weak) form of social legitimacy for a nontransparent process in which governments nominate and governments appoint members of the CJEU. For the governments to appoint a judge who, for whatever reason, has been rejected by the panel could create a very reasonable doubt that the governments can place ‘their’ candidate in the Court without regard to the candidate’s suitability for office. In this area, as the Court of Justice has repeatedly asserted, public confidence in the judiciary and its independence are paramount (ibid., para. 49). Overriding a negative opinion would contravene the very raison d’être of Article 255 TFEU and could gravely undermine public confidence in the Court.
Selection panels, like courts, even apex courts like the Court of Justice, occasionally make mistakes. Apex courts, however, are usually able to correct such mistakes, where in subsequent proceedings a party points out the flaw in the earlier decision, whether in legal reasoning or practical implications. Can it really be that the Panel should be treated as infallible and its opinions without any form of review?
Rule 6 of the operating rules of the panel entitle it to ‘ask the government making the proposal to send additional information or other material which the panel considers necessary for its deliberations’. There is no obligation on the panel to ask for such information, and it is quite conceivable that in a particular case the panel’s omission to do so has been informed by its own 20-year rule.
Where, in the light of the panel’s reasons, the nominating government takes the view that the panel has failed properly to assess the suitability for office of its candidate, it may spontaneously provide the panel with further and better information regarding the particular respect in which the candidate has fallen short. Such an initiative, which is consistent with the spirit and objectives of both Rule 6 and Article 255 TFEU, would be in the interests of the panel, the governments individually and collectively, and ultimately of the CJEU.
Kieran Bradley is a judge of the Administrative Tribunals of the International Monetary Fund and the Inter-American Development Bank Group, and a former judge of the European Union Civil Service Tribunal.
SUGGESTED CITATION: Bradley, K.; “(Not quite) In Defence of the Article 255 Panel”, EU Law Live, 30/09/2024, https://eulawlive.com/op-ed-notquite-in-defence-of-the-article-255-panel/
Virtues and vices of the 255 Committee – are we asking the right questions?
Henri de Waele
It is commendable that EU Law Live is hosting a symposium on ‘The Selection of EU Judges and the 255 Committee’. Prima facie, one might query the need to do so, almost fifteen years after the entry into force of the new appointment method pursuant to the entry into force of the Lisbon Treaty. To be sure, the initiative does add handsomely to the burgeoning scholarship on the topic (see e.g. here, here and here). Preferably however, the efforts are not directed towards a mere rehearsal of well-established points of critique, but help to advance the science or (paraphrasing Sir Isaac Newton) to ‘build on the shoulders of giants’. Current problems ought to be diagnosed thoroughly, and novel suggestions devised for addressing them effectively. Though contributors to the symposium have deservedly drawn attention to various existing drawbacks of the 255 Committee system, this piece believes we should aim to push the boundaries of debate a bit further.
What issues have been identified so far? Earlier in the series, kicking off the ruminations, Professor Weiler expressed his dismay with regard to one particular facet, the recent application by the 255 Committee of the ‘judicial experience’ criterion – which has to his mind been all too rigidly applied lately in the case of one Mr Gonçalo Manoel de Vilhena de Almeida Ribeiro. This contribution was followed by an op-ed by no fewer than six authors, echoing the exact same sentiment. Truth be told, that the 255 Committee has, in so doing, ventured beyond its own mandate is of itself hardly an original observation. What is more, Professor Weiler’s general, poignant question of ‘Who judges the judges who judge the judges’ could be said to trigger an infinite regression loop. After all, who then judges the judges judging who judges the judges? And so on.
The underlying problem appears to be one of accountability, and also one of democracy: is there ultimately sufficient control over those who are in control? In the context at stake, the answer may well be in the negative. Certainly, for those believing in the value of technocracy and the ideal of judicial self-government, the contemporary procedure for appointing the Committee – with the European Parliament only being allowed to nominate one member, while the rest is nominated by the President of the CJEU – seems perfectly acceptable. For those craving a greater input legitimacy, e.g., drawing comparisons with the US Supreme Court or even the German Bundesverfassungsgericht, it seems rather deficient. There is a definite potential for reform here that would ensure a greater representation and openness. Already in 2015, a rapporteur of the Parliament recommended the establishment of a panel of experts to analyse the overall workings of justice in the EU and formulate proposals for enhancement. To his mind, that panel was to take into account, inter alia, gender parity, the possibility to recruit judges through public tender from among reputable law professors and judges from Member State high courts, alongside the option to impose a non-renewable nine-year tenure. In fact, the idea of open recruitment through tender was practiced at the Civil Service Tribunal (2005-2016) prior to its dissolution, while the Unified Patent Court (since June 2023)
proceeds likewise. Despite the limited jurisdictions of these institutions, the experiences show how states need not be principally opposed to independently functioning supranational judiciaries.
Focusing on the CJEU appointment decision, one may wonder: why should that crucial power rest solely with national governments, anointing candidates after considering the 255 Committee’s opinion, selected on the basis of (still non-standardised) domestic procedures? The democratic dimension could be amplified through a stronger involvement of the Parliament in the preceding phase, as Christoph Krenn has tabled before. Alternatively, might the decisive competence be bestowed onto an autonomous recruitment body composed of peers? Moving away from the ‘Member State prerogative’ model would help neuter the importance of a candidate’s origin, in favour of their individual merits in view of the specific needs of the court concerned. Nationality may still play a role in the eventual choice, to ensure reasonable geographic balance, yet next to other no less pertinent criteria – relegating the importance of, for example, the duration and type of previous judicial offices a nominee has held.
In his previous research, Alberto Alemanno asked the apposite question: ‘How transparent is transparent enough?’ In a similar vein, his latest answer makes clear that the setup right now, tried and tested over the past decade, is falling short in multiple respects. His playful call for a ‘disinfectant’ in the piece’s title suggests that the present architecture is riddled with disease. This could be perceived as an overstatement. His main bone of contention continues to lie with the alleged need to keep the opinions of the 255 Committee confidential, masterfully demolishing the arguments that have been employed thereby (the candidate’s privacy and data protection; avoidable reputational damage; the likely adverse effect on the willingness to be nominated). His exposé is briefest though on the third negative consequence a full disclosure is believed to have, where he puts that ‘some risk of a chilling effect is inherent to any form of “quality review” whose mission is to exercise external scrutiny on governmental choice’. With this sweeping statement, a key hesitation is swept under the rug – not least since Alemanno mentions himself how the existing (fairly convoluted) system already threatened to dissuade prospective nominees a long time ago. Understandable as space constraints are, an extended pondering may have prompted the thought it is not so easy to rectify one shortcoming without conjuring up a new problem elsewhere. Are some things simply as good as they can possibly get?
The virtues of the modern approach to appointments at the CJEU have to be recognised anyhow. The 2009 operation could have boiled down to the introduction of a paper tiger. In contrast, a refined screening mechanism was installed that made a more objective review possible. The old-fashioned process had the benefit of being straightforward, but proved vulnerable to political pressure, shady motivations and undue interference. In comparison, the creation of the 255 Committee was a breath of fresh air. At the same time of course, the changes made were neither large-scale nor wildly revolutionary. There are genuine vices to the nouveau regime, even if they do not seem wholly acute. That should not detract from the finding that the Committee has been successfully carrying out its task overall, manifestly performing the intended filtering function.
For a complete picture, lastly, one must not overlook the classic and eternal phrase: ‘Quis judicabit?’ Among insiders, it is common knowledge that members of the Court profit considerably from the zeal and wit of their
assistants. Every judge and AG at the CJEU commands a cabinet consisting of several such legal secretaries. Consequently, the importance of the screening by the 255 Committee should be placed in perspective when the persons scrutinised turn out to regularly limit themselves to instructing their clerks, and running with the latter’s submissions. Thus in all likelihood, the judges’ productivity, as well as the substantive quality of their output, is linked closely to the abilities of their support staff – also enabling appointees who failed to impress the 255 Committee earlier to boast a fairly decent track record during their term of office. Vice versa, the prior demands nowadays placed on prospective CJEU judges might be way too stringent, in face of the invaluable support the office-holders are able to count on in their day-to-day work. In this light, indeed, perhaps this symposium should alter its focus. Should we not rather be seeking to scrutinise the methods of selecting référendaires instead…?
Henri de Waele is Professor of International and European Law at Radboud University Nijmegen, and Guest Professor of EU External Relations Law at the University of Antwerp.
SUGGESTED CITATION: De Waele, H.; “Virtues and vices of the 255 Committee – are we asking the right questions?”, EU Law Live, 03/10/2024, https://eulawlive.com/op-ed-virtues-and-vices-of-the-255-committee-are-we-asking-the-right-questions/
A necessary Committee in Need of a necessary Upgrade
Daniel Sarmiento
The Symposium on the ‘255 committee’ has garnered a lot of attention in the past few weeks, but this is hardly a surprise. The impact of the discussions reflects the objective importance of the 255 committee, due to the tasks it has been entrusted by the Treaty, so essential for the proper functioning of the Union judiciary and, more generally, for the Union’s commitment to the rule of law. The debate has also gone beyond the boundaries of a technical debate, mostly because of the systemic role played by the 255 committee, but also because of some surprising decisions issued lately by the panel. By the time the Symposium was launched, the role of the 255 committee was in the minds and conversations of many, a reality that raises the question of why this should be the case at all, if the committee is simply fulfilling the tasks entrusted to it by the Treaties.
Having the benefit of contributing to the Symposium at a rather late stage, now that most of the arguments against and in favour of the committee have been outlined, I will focus on a point that has been floating around during the discussions, but not as the sole focus of study: the need to undertake any amendments to the current framework governing the committee’s activities.
The title of this contribution already points in the direction of a potential conclusion: the necessary 255 committee needs some necessary upgrades. I will refrain from using the term ‘reform’, because it is my firm belief that the committee is a crucial piece of the Union’s institutional framework and it needs no overall reconsideration as to its role and tasks. I will stick to the term ‘upgrade’ because I believe that it reflects more properly the situation we are in at this time, in which the committee is considered to be of crucial importance, but requiring some degree of adaptation to the demands of contemporary institutional decision-making.
In my view, the 255 committee is in need of an upgrade in two specific areas which are closely connected: transparency and accountability. The first has been a source of concern since the very origin of the committee’s activities in 2010. The second is more recent and it has to do with the broad discretion granted to the committee, which has gradually evolved from an advisory body into an examination board, but lacking procedural guarantees.
From the moment of its creation, the 255 committee has worked and delivered its decisions in almost absolute obscurity. This is not entirely strange to decision-making in the judicial sphere, where the secrecy of the deliberations is a well-accepted practice in most European countries and with no apparent signs of reform in sight. It is widely accepted that judicial deliberations, for the sake of the ‘tranquility’ of their development and to ensure the independence of the judges, should take place in conditions of strict confidentiality. The 255 committee works in similar terms, but elevating the degree of confidentiality to the extreme: not only the deliberations of its members are secret, but so are the hearings in which candidates are heard, together with the decisions providing the reasons for its positive or negative opinions. The official line of argument has been closely attached to the inter-governmental nature of the procedure of appointment of judges and Advocates General, but also to the
protection of privacy and reputation of candidates. Both arguments respond to very different logics, and both arguments are equally weak as a justification to preserve the total opaqueness of the committee’s work.
After more than a decade of activity, it can be said that these conditions (or lack) of transparency are totally unacceptable for a mature democratic organisation, as the Union aspires to be. They are also counterproductive for the 255 committee itself, with the risk of damaging it irreparably in the long run.
The Court of Justice of the European Union is currently the most powerful court in the European continent and one of the most relevant courts in the world. Its judgments address all the existential issues of our time and they do so with an impact that covers a range of close to half a billion individuals. The Union is a democratic organisation that relies on the representative mandate of its citizens, both through the actions of national governments in the Council and the direct representatives of Union citizens in the European Parliament. The Court of Justice acts as a counterbalance to the Union’s legislature and sets the terms of interpretation of the Treaties, which are only subject to highly (at present, close to impossible) revision procedures. It is therefore unimaginable that the candidates that intend to sit on this supreme among supreme courts of Europe are scrutinised with a reasonable degree of transparency, so that the citizens can have an informed opinion of who is sitting in that court and by way of what merits. Is it conceivable that the members of the Court of Auditors and of the Executive Board of the European Central Bank are subject to a public hearing in the European Parliament, but the judges who will sit at the very apex of the Union’s judicial system pass through a secretive committee which only the Permanent Representatives of the Member States can communicate with?
To make things worse, the cloud of obscurity and secrecy contributes to undermine the work of the 255 committee and damages its reputation. Some of its decisions will be difficult to make and at times they will be tragic (cases in which, no matter what the committee decides, it will be criticised). On most occasions, the difficulty of the individual case and how it was eventually overcome can be perfectly explained through sound and coherent arguments. But alas, nobody knows and nobody ever will, because the committee’s decisions are confidential. It is perfectly possible that a candidate had a horrendous day and failed to do a good performance in the hearing, thus failing to comply with the committee’s standards. But nobody will know. Nobody will follow the hearing, nobody will read the committee’s opinion and those who do know will speak with caution, off the record, in ways that can get lost in translation, thus paving the way for misinformation and, of course, conspiracy theories. Who is the winner of this outcome? The reputation of the candidate? Certainly not. The tranquility of the committee and its environment to make decisions? I very much doubt it. The winners are those who have an interest in undermining the committee altogether, particularly those who have been frustrated in the past when the committee did its job and refused to confirm a candidate who was genuinely unfit for purpose.
I will now turn to accountability and procedural fairness, which is the second area in which an upgrade is, in my view, needed. It is difficult to make the argument in the absence of public information, but at this point and after more than a decade of experience and direct and indirect leaks of the development of hearings in the committee, it can be argued that the 255 committee has turned into something more than an advisory body of the representatives of the governments, having evolved into more of an examination board. The criteria
used by the committee and published in its annual reports are a good example of the committee’s concern with specific features of the candidates, even performing pseudo-mathematical operations in which age, experience and knowledge are put into the equation to provide an optimal outcome. From the information available to date, there is ample gossip about the questions being made to candidates on specific judgments about competition, trademarks and staff cases. The development of these hearings appears to vary depending on the severity or robustness of the national selection procedures (if any), but there is a broad understanding in the legal community that the 255 committee prioritises its role as an examination board rather than as a consultative body. This is all very well, and nobody should be surprised by this evolution, which is partly visible in the annual reports published by the Council. But this evolution tilts the balance of power in favour of the committee, which has the expertise to question candidates on very technical matters, unlike the representatives of the governments, whose role is to make the political decision of appointment. By developing into a technical and strict examination board in which candidates can go through serious difficulties to prove their technical merits, the committee has assumed a role that is probably in conformity with the Treaty. However, with greater power comes greater responsibility, which, if we use the language of institutional dynamics, amounts to greater accountability.
Is there accountability in the committee’s actions and decisions? In principle, the answer is in the affirmative: the representatives of the governments can always ignore the opinion of the committee, which is not binding. However, it is obvious that this is no genuine tool to provide an effective counterbalance. Rejecting an opinion of the committee would amount to a declaration of institutional war that could very well trigger an immediate collective resignation of the committee’s members, considering their services no longer needed if their views are to be freely ignored by the governments of the Member States. So what genuine accountability is there? It could be argued that transparency would be an efficient tool in itself, enough to incentivise the committee into making careful and well-reasoned decisions. But as previously explained, there is no transparency at all, so hardly can there be any accountability on this ground. Overall, the evolution of the committee towards an examination board begs the question of how an unsuccessful candidate can disagree and, eventually, bring the matter to the review of another body of law. It is true that the committee is not a court, nor are its decisions binding. But considering that the only remedy to challenge the committee’s view is a nuclear option that could very well cause the institutional disintegration of the entire system, it would be advisable to introduce some form of mechanism to ensure the candidate that the unfavorable decision affecting him or her can be reviewed at some point.
Having said this, some creative thinking seems to be needed. It does not have to be revolutionary nor excessively creative. Maybe some tweaking here or there would be enough, but the current design certainly needs an upgrade at least on the two areas just mentioned.
When it comes to transparency, the traditional criticism has focused on the confidentiality of the committee’s opinions. However, I consider that the publication of these documents would not necessarily fix the weaknesses mentioned above. To what extent will the opinion disclose the failings of a candidate if nobody really knows how the candidate performed during the hearing? And considering the importance that the hearing has assumed in the decision-making process of the committee, it is my view that the hearings should be public and streamed, in
the same way that hearings in the European Parliament are made available online. Good candidates will perform well, weak candidates will show their limitations for everyone to see. If a negative opinion finally arrives, even if its reasoning is confidential there will be sufficient elements for the public to understand why. It is as simple as watching the online hearing. Considerations of privacy and reputational harm are simply unjustified in precluding a public broadcast. A candidate that wishes to sit in Europe’s highest court cannot hide behind his or her right to privacy to refuse to show the merits that justify an appointment to high judicial responsibilities. Furthermore, in most Member States it will be perfectly well known that a candidate has been proposed to fill the position, since many of the national procedures are either public or the final decision is announced and fully accessible in the media.
Therefore, whilst it is conceivable that the committee’s opinions remain confidential, or are provided in a confidential and a non-confidential version to ensure certain degree of discretion, it is imperative that the hearings of the candidates are public and available online. The public deserves it, the candidates deserve it, but so does the Court of Justice and the committee itself.
On the point of accountability, the matter is not so straightforward. As aforementioned, the committee is not a court and its decisions are not binding. However, the only remedy available is just as untenable as it is unrealistic, so an alternative needs to be thought of. I agree with Kieran Bradley that a mechanism in which the representatives of the governments ask the committee to reconsider a decision can be useful. However, such a decision will be left mostly in the hands of the governments of the Member States, not of the candidate. It is true that a committed candidate will probably sway his or her government to push for a request of review, but leaving the matter in the hands of the Member States looks like no remedy at all. In my view, and as a first step subject to future improvements, I suggest that the candidate receiving a negative opinion should have a right to request a second hearing before the committee. This course of action will give the candidate a second chance (everybody can have a bad day), it will allow the committee to obtain a more complete overview of the candidate’s profile and it will reassure the public and, above all, the representatives of the governments of the Member States, that whatever decision is finally made, it will have been the result of a well-thought-out and fair procedure.
These are rather modest proposals that would not alter the nature of the committee’s tasks nor its current approach towards its role. They would simply give the public sufficient comfort as to the legitimacy of the committee’s decisions, allow the candidates to have a fair procedure and, above all, it will allow the committee to perform the essential tasks that it has been assigned, without a hint of doubt or contestation. A very significant impact for such a modest, but necessary, upgrade.
Daniel Sarmiento is Professor of EU Law at the University Complutense of Madrid and Editor-in-Chief of EU Law Live
SUGGESTED CITATION: Sarmiento, D.; “A necessary Committee in Need of a necessary Upgrade”, EU Law Live, 04/10/2024, https://eulawlive.com/ op-ed-a-necessary-committee-in-need-of-a-necessary-upgrade/
SYMPOSIUM
SYMPOSIUM ON THE 2024 REFORM OF THE STATUTE OF THE COURT OF JUSTICE OF THE EU
2024 Reform of the Court of Justice: historical and normative Underpinnings
Paul Craig
There is undoubtedly a paper to be written more generally concerning the historical and normative underpinnings of the division of jurisdiction as between the Court of First Instance/General Court and the European Court of Justice/Court of Justice for the European Union, from the very inception of the CFI. It would be an interesting and important paper. This is more especially so because while there was some pragmatic rationale for the division of jurisdiction as initially laid down in the Treaties and Statute of the Court of Justice, this served only as a partial explanation for the divide, the normative rationale being largely implicit and unspoken. The effluxion of time has done little to clarify matters in this respect, with further piecemeal change to the status quo ante, but little by way of deeper thinking as to the optimal divide between the two courts. There were to be sure the two valuable reports in 1999 and 2000, which canvassed reform options, more particularly directed towards preliminary rulings. There was, nonetheless, little by way of more root and branch consideration as to the practical and normative factors that should shape the general divide between the two EU courts. Nor was this forthcoming in the deliberations that led to the Constitutional Treaty, with scant time assigned for judicial reform, and deliberations that were closely circumscribed in terms of substantive scope and participatory input.
This brief op-ed will, however, be confined to the historical and normative underpinnings of the 2024 reform of the Court of Justice, and the decision to assign certain limited categories of preliminary rulings to the General Court. The focal point for this more specific analysis is the CJEU’s paper that it submitted to explain and justify the request submitted pursuant to Article 281 TFEU to amend Protocol No 3 on the Statute of the Court of Justice. We can discern the historical trajectory of the reforms, as well as the normative impulses that underpinned them.
We begin with the historical trajectory. The story as told in the request submitted by the Court was as follows. The Nice Treaty established for the first time the possibility that certain categories of preliminary rulings could be transferred to the General Court, to prevent the CJEU from being overloaded with requests for such rulings. However, this was not acted on in the early years of the new millennium. This was in part because priority at that time was accorded to establishment of the European Union Civil Service Tribunal. It was in part because priority was also given to the transfer to the General Court of the great majority of actions for annulment, except for some interinstitutional actions and actions brought by Member States against acts of the Union legislature. A further reason given as to why the power in the Nice Treaty was not triggered at that time was because the CJEU engaged in procedural reforms that reduced the length of time for preliminary rulings and hence reduced the case load pressure on the Court.
The historical trajectory also furnishes the CJEU’s explanation as to why it did not submit such a request in 20152017 when reform to the General Court was being considered. The rationale given by the Court was that such a transfer was not needed at that juncture. This was because the time taken for preliminary rulings had been further reduced to 15 months, and because the reforms to the General Court were still ongoing, as manifested in the fact that not all the new cadre of General Court judges had been appointed.
This led naturally to the historical explanation as to why the reform proposal was advanced five years later. The Court’s request identified two factors in this regard. There had been an upward increase in the trajectory of preliminary rulings, and in the complexity of the cases referred, which led in turn to increased time to deliver judgments in such cases. The reforms to the General Court had been completed, with the consequence that it now had the full complement of 54 judges and could therefore take on further work. The time was therefore ripe to activate the Nice Treaty power to assign categories of case to the General Court.
We now turn from the historical to the normative dimension of the inquiry. The overriding normative imperative that emerges from the Court’s request, although not stated in these terms, was that while the Nice Treaty power should be activated, it should nonetheless be closely confined. This is readily apparent from the outset of this part of the Court’s request, where it emphasised that the power in Article 256(3) TFEU was not to grant the GC a general jurisdiction, but merely authority to allow it to give preliminary rulings in specific types of case. The overriding normative imperative is further evident in the criteria that informed the choice of the specific areas. There were four such criteria specified: the areas should be discrete, separable from other areas of EU law and readily identifiable from the request for the preliminary ruling; the specific areas should raise few issues of principle; there should be abundant existing CJEU case law to guide the General Court; and the areas should have a sufficiently high number of cases, such that the transfer of preliminary rulings to the General Court would make a difference to the CJEU’s workload. It was on the basis of the preceding criteria that the CJEU identified six areas in which authority to give preliminary rulings would be assigned to the GC: the common system of value added tax, excise duties, the Customs Code and the tariff classification of goods under the Combined Nomenclature, compensation and assistance to passengers, and the scheme for greenhouse gas emission allowance trading. It was estimated that this would thereby reduce the CJEU’s preliminary ruling workload by 20%.
The normative imperative identified above, whereby the power in the Nice Treaty should be triggered but closely confined, was further evident in the substantive and procedural conditions for dealing with such cases.
In substantive terms, all requests for preliminary rulings continue to be made to the CJEU, which decides if the case falls exclusively within an area assigned to the GC. If the case fell within such a subject matter area, but also entailed other issues, relating to the interpretation of primary law, public international law, general principles of Union law or the Charter of Fundamental Rights of the European Union, it would be decided by the CJEU. The Court’s request also emphasised the continuing importance of the power in Article 256(3) TFEU, whereby the GC could refer a case to the CJEU if it required a decision of principle likely to affect the unity or consistency of Union law, and the possibility for the CJEU to review the decision of the GC where there is a serious risk of the unity or consistency of Union law being affected.
In procedural terms, the effect of the reforms is very much to shape the GC as a surrogate for the CJEU when deciding such cases. This is readily apparent from the procedures mandated for the GC in such cases. It must sit in specialised chambers when hearing such cases; it must nominate one of the GC judges as an Advocate General, subject to the same caveat as applies when cases are heard by the CJEU, which is that an AG can be dispensed with if the case raises no new point of EU law; and the GC should have the possibility of sitting in a formation greater than 5, albeit less than the 15 judges of a Grand Chamber.
As noted by Michal Bobek in his previous op-ed in this symposium, time will tell how the new reform works. It is however clear from both the historical and normative underpinning of the 2024 reform that the CJEU regards the changes as relatively interstitial and marginal, and that they should not call into question broader issues concerning the jurisdictional divide between the CFEU and GC.
Paul Craig , Emeritus Professor of English Law, St John’s College, Oxford.
SUGGESTED CITATION: Craig, P.; “2024 Reform of the Court of Justice: historical and normative Underpinnings”, EU Law Live, 02/10/2024, https:// eulawlive.com/op-ed-2024-reform-of-the-court-of-justice-historical-and-normative-underpinnings/
THE LONG READ
Digitalizing Judicial Cooperation in Criminal Matters: Nailed it on the first try?1
Silvia Allegrezza & Lorenzo Bernardini 2
I.Introduction
On January 2024, two EU legislative initiatives aimed to digitalise ‘judicial cooperation and access to justice in cross-border civil, commercial and criminal matters’ – Regulation (EU) 2844/2023 and Directive (EU) 2023/2843 – have been approved. Confirming a recent but solid trend, the combination of a Regulation with a Directive offers a comprehensive reform package, an ambitious legislative leap – the last one in the field of e-Justice3 – as it promises to streamline judicial procedures, enhance efficiency, foster access to justice and, potentially, revolutionise how justice is served across the EU borders.
As for the digitalisation of judicial cooperation in criminal matters, five amendments are worth mentioning:
(1) The Regulation provides for the use of a decentralised IT system to facilitate ‘secure, efficient, and reliable’ communication between competent authorities across Member States (Article 3). This system should be employed by default, while alternative communication methods (i.e., paper-based ones) are allowed in cases of technical or practical constraints, or force majeure;
1. Findings of this article are part of a research conducted within the EU-funded DIGIRIGHTS project, led by KU Leuven. This project has received funding from the Justice Programme (JUST) under grant agreement No 101056667. The views expressed in this paper are the Authors. They do not reflect the views or official positions of the European Commission.
2. Silvia Allegrezza is Associate Professor in Criminal Law and Criminal Procedure at the University of Luxembourg. Lorenzo Bernardini is Postdoctoral Researcher in Criminal Law and Criminal Procedure at the University of Luxembourg.
3. In the field of cross-border cooperation, see, for instance, Regulation (EU) 2022/850 on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (‘e-CODEX Regulation’). Notably, the e-CODEX system is a digital infrastructure designed to facilitate the cross-border electronic exchange of data in the area of judicial cooperation within the EU, enhancing the efficiency of communication between judicial authorities and improving access to justice for citizens and businesses. It operates as a decentralized system, allowing interoperability between different national IT systems for both civil and criminal matters. The European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (euLISA) has been entrusted with the management, further development, and maintenance of the e-CODEX system as of July 2023.
See, also, Regulation (EU) 2023/1543 on European Production Orders and European Preservation Orders for electronic evidence in criminal proceedings and for the execution of custodial sentences following criminal proceedings (‘e-evidence Regulation’), aiming to establish a new legal mechanism for cross-border transmission of digital evidence
Finally, it is worth recalling that the Commission is currently working on the implementation of the eEDES (e-Evidence Digital Exchange System), a secure digital platform designed to facilitate the exchange of electronic evidence and judicial cooperation in criminal matters among EU Member States’ authorities. It aims to enhance the efficiency of cross-border procedures by allowing secure, electronic communication and data exchange, based on the infrastructure developed from the e-CODEX system.
(2) The use of videoconferencing for cross-border hearings is expressly provided for. It will be contingent, as a rule, on the informed consent of the individual concerned (Article 6 of the Regulation). Adequate infrastructure and confidentiality measures shall be in place, without prejudice to fair trial and defence rights;4
(3) Additionally, Article 7 thereof mandates the use of qualified electronic signatures and seals to maintain the integrity and legal recognition of digital documents exchanged in cross-border proceedings;
(4) Article 8 thereof further strengthens the validity of electronic documents, ensuring they are not denied legal effect solely on the grounds that they are in electronic form;
(5) Finally, Article 9 thereof provides for the availability of electronic payment methods for fees.
The adoption of both the Regulation and the Directive has been announced as a ‘decisive step’ aimed at modernising and improving the efficiency, accessibility, and resilience of judicial systems across Europe,5 in historical continuity with the well-settled approach that the EU has developed towards digitalisation in cross-border cooperation since the early 2000s. We would argue that said pieces of legislation constitute the rule – not the exception – of the EU strategies on digitalisation (Section II) while we may identify several innovative elements in said Regulation. Possibly, the most interesting feature appears to be its ‘transversal approach’, in that it aims at making judicial cooperation in both civil, commercial and criminal matters fit for the digital age. While this legislative technique might be praised for the sake of consistency and clarity, the question remains as to whether different frameworks relying upon sectorial principles and rationales could be efficiently regulated with a sole piece of legislation. This comprehensive approach promotes the idea that procedural rules on digital tools are ‘neutral’. In other words: when adopted, the concept of technological neutrality allows to overcome any value-based characterisation in the specific field of justice as well as geographical discrepancies due to different national traditions, still persistent among EU national criminal justice systems. Assuming digitalisation and technology-driven reforms as neutral is very delicate step, to say the least, especially when applied to the criminal justice realm, where the use of technology could have a dramatic impact on digitally vulnerable persons. Both the suspect or accused persons’ guarantees and victims’ rights can be affected (Section III). As we will argue, in any event indeed, the adoption of the Regulation will prompt an indirect harmonisation of domestic systems, thus well beyond cross-border cooperation cases. An indirect approximation of law enforcement via technology, a phenomenon that it is not brand-new in the field of European criminal justice. However, it depicts some elements of novelty which are worth mentioning, among others, that of the potential emergence of a right to be present online at criminal trials (Section IV).
II. A old-fashioned strategy
The adoption of both the Regulation and the Directive is clearly an important step towards the digitalisation of machineries of (civil, commercial and) criminal justice within the EU legal framework. In an era where digital
4. Gascón Inchausti, The new regulation on the digitalisation of judicial cooperation in the European Union: something old, something new, something borrowed and something blue, in ERA Forum, 2023, 24, 548–550.
5. Statement given by Commissioner for Justice Didier Reynders, on 16 January 2024.
transformation touches every aspect of our lives,6 justice systems makes no exception. While 20 years ago the conception of virtual justice ‘seemed the stuff of a science fiction’,7 things have dramatically changed in our continent. It would be easy to refer to the COVID-19 pandemic as one of the large-scale events that had pushed Europe towards an increasing shift8 towards what is termed ‘digital justice’, that is, the employment of ‘digital technologies to implement the practice of law and the work of the police, lawyers, and the courts’.9 The pandemic’s impact as a digitalisation-enhancing phenomenon could not be underestimated,10 and a lot of attention has been – rightly – paid to the COVID-19 outbreak as a catalyst for digitalisation of criminal justice systems in Europe.
Seeds of this digital shift in European criminal justice systems, however, have already been planted decades ago. Since the 2000 Convention on Mutual Legal Assistance in Criminal Matters (MLA Convention), the digitalisation of judicial cooperation in criminal matters within the EU has advanced, especially with the increased use of videoconferencing. The MLA Convention marked an early step in enhancing cross-border criminal cooperation, providing for an ad hoc provision on hearing by videoconference (Article 10 MLA Convention). Despite being limited in scope ratione personae, 11 the provision in the 2000 MLA Convention was pioneering. At the time –twenty-four years ago (!) – where most Member States lacked the necessary infrastructure, this was undoubtedly a visionary move, because the EU recognised very early on the potential benefits of using technology for crossborder cooperation.
This is why it is safe to argue that the EU has long been at the forefront of integrating digital tools like videoconferencing in judicial cooperation, particularly in criminal matters, showing political maturity and foresight, well before the pandemic forced global institutions to adopt such technologies out of necessity.
This first explicit attempt to regulate digitalisation of cross-border cooperation at the EU level, albeit with a sectorial limitation to videoconferencing was not only a response to immediate logistical challenges, but also a clear strategic push toward long-term efficiency, reflecting the Union’s commitment to modernising justice systems. The MLA Convention represented an innovative piece of legislation, a ‘step ahead’ of Member States, forcing national systems to rely on IT tools in their machinery, urging them to equip their courtrooms – or equivalent facilities – with the relevant IT infrastructure.
6. The CrowdStrike incident in July 2024 serves as a stark reminder of our profound dependency on technology, particularly in the realm of cybersecurity. When CrowdStrike, a leading American cybersecurity firm, deployed a faulty software update, it inadvertently triggered a global technology outage This accident not only grounded flights, disrupted financial services, and halted emergency response systems but also underscored the vulnerability inherent in our interconnected digital ecosystem. In other words, that event highlighted how reliant modern society has become on a handful of private technology providers. In 2019, CoE Commissioner for Human Rights Dunja Mijatović already urged State Parties to tackle the ‘threat of over-reliance on digital technologies’.
7. McKay and Macintosh, ‘Digital Criminal Courts: The Place of Space of (Post-)pandemic Justice’, in Smith et al. (eds.), Cybercrime in the Pandemic Digital Age and Beyond, Palgrave Macmillan, 2023, 193–208.
8. Žukovaitė, The Future Prospects of Remote Criminal Trials in EU Law (EU Law Live, 25 June 2024).
9. Fraley, ‘Digital Justice: Shining Future or Illusory Chimera?’, in Pólemos, 14(1), 2020, 47.
10. Cfr. Kramer, ‘Access to Justice and Technology: Transforming the Face of Cross-Border Civil litigation and Adjudication in the EU’, in Benyekhlef et al. (eds.), eAccess to Justice, University of Ottawa Press, 2016, 351– 376.
11. It is applicable only to situations where a person in one Member State’s territory must be heard as a witness or expert by the judicial authorities of another Member State.
The belief of videoconferencing as an effectiveness-enhancing choice for judicial cooperation in criminal matters was confirmed by Article 24 of the European Investigation Order Directive (EIO Directive). A provision clearly based on Article 10 MLA Convention, yet more detailed in some respect,12 the introduction of videoconferencing tools for the purpose of cross-border evidence gathering confirmed the old-fashioned EU favour for technologybased enhanced cross-border cooperation. With an innovative shift, the EIO Directive explicitly imposes a framework for suspects’ and accused persons’ remote hearings – a possibility that, beforehand, was provided in the MLA Convention as well, but solely at the discretion of the Member States (Article 10(9) MLA Convention).
Read in this light, Article 6 of the Regulation 2844/2023 seems less innovative. Noteworthy as a post-pandemic legal product, it arrives when, with some nuances, a majority of (civil, commercial and criminal) EU justice systems has already been digitalized. 13 To put it differently, some months ago, at the time of the adoption of both the Regulation and the Directive, the EU was ‘a step back’ of Member States. This may be factually demonstrated by a series of circumstances.
A recent report from the World Bank found that the pandemic crisis definitely prompted governments around the world to implement an ‘unprecedented number of reforms to digitize their judiciaries’.14 Shared among these approaches were the efforts to explore digital alternatives to physical presence and service of documents via IT means in both civil and criminal cases. In a sense, the pandemic compelled even the most reluctant countries to ‘go digital’ and explore the potential of digital technologies with the aim of modernising their machinery of justice.15 However, once the emergency subsided, few countries simply reverted to their previous frameworks, dismissing or, possibly, overlooking the added value that digital tools could bring in enhancing access to justice and its efficiency.16 Focusing on criminal proceedings, this reluctancy has predominantly stemmed from various concerns (e.g., prejudice for the right to be physically present at trial,17 diminution of human interactions and its detrimental impact on defence rights,18 influence of IT technologies on decision-making procedures,19 privacy and security issues20). The majority of EU countries nonetheless continued to pursue the digital shift, maintaining and, in some cases, even improving the digital frameworks established during the COVID-19 pandemic.21 This has resulted in a patchy picture within the EU – the coexistence of both more and less digitalised criminal justice
12. Explanatory Memorandum, 19.
13. These findings have been provided by national reports (Italy, Estonia, Hungary, among others) developed in the context of DIGIRIGHTS project.
14. Maroz et al., Digitazing Court Systems: Benefits and Limitations, Global Indicator Briefs No. 25 (World Bank, 22 December 2023), 4. 15. Sanders, Video-Hearings in Europe Before, During and After the COVID-19 Pandemic, in International Journal for Court Arbitration, 2020, 12(2), 1–21.
16. See, for a general picture, Kramer, Digitising Access to Justice: The Next Steps in the Digitalisation of Judicial Cooperation in Europe, in Revista General de Derecho Europeo, 2022, 56, 1–9.
17. Klip, The Right to be Present Online, in European Journal of Crime, Criminal Law and Criminal Justice, 2024, 32(1), 1–14.
18. de Vocht, Trials by video link after the pandemic: the pros and cons of the expansion of virtual justice, in China-EU Law Journal, 2022, 8(1-2), 33–44.
19. Peristeridou and de Vocht, I’m not a cat! Remote criminal justice and a human-centred approach to the legitimacy of the trial, in Maastricth Journal of European and Comparative Law, 2023, 30(2), 97–106.
20. See the report Digitalisation of Justice: Turning Challenges into Opportunities (eu-LISA, 23-24 November 2023).
21. See Sanders (n 14) for further references.
systems, which could hinder the smooth functioning of cross-border cooperation and judicial exchanges between different authorities.22 National loopholes, delays – where existing – in adapting national systems to the MLA Convention, and their negative effect on judicial cooperation were widely acknowledged since 2020 by both the Commission and the Council
Against this background, the feeling is that Article 6 of the Regulation will be applied in a context that suggests a kind of ‘confirmation’ – or, possibly, a ‘ratification’ – of what was already in force in several Member States, that is, the employment of remote conferencing in cross-border criminal procedures for both experts, witnesses, suspects and accused persons. However, this is not tantamount to deny any added value that the Regulation would provide in the field. Nevertheless, any analysis in that respect shall take the historical background into account (at least, with regard to videoconferencing technique).
III. A sole Regulation for three areas—A wise choice?
Looking at the structure of the Regulation, it appears that the main provisions on digitalisation of judicial cooperation in cross-border civil, commercial and criminal matters are contained into an act which immediately produces legal effects (once entered into force) which will become legally binding from May 2025 (date of applicability). At a first glance, this might seem a strong statement, as changes required to Member States are not but challenging. They will need to establish smooth digital channels for cross-border communications and equip their facilities with functioning tools allowing remote hearings (for both civil, commercial and criminal matters), or, finally, set up brand-new European electronic access points (for civil and commercial matters only).
Even though some Member States are currently a step ‘ahead’ in this field, it is important to catch the broader picture of this legislative strategy. The EU is essentially urging the Member States to complete digitalization initially triggered by cross-border tools (MLA Convention and EIO Directive) and then domestically extended because of the pandemic. The fact that domestic frameworks are more or less already prepared, perhaps prone, to ‘go digital’ may be easily demonstrated by the very short date of applicability of the Regulation; one year and a half would not have been sufficient for implementing all the changes required by EU law from scratch. This is not the case, though.
Nevertheless, the Regulation adopts an interesting legislative approach which deserves some analysis. Digitalisation is triggered in judicial cooperation in cross-border civil, commercial and criminal matters through a transversal approach; all matters are within its scope of application. Such approach is to be praised from a pragmatic perspective; it would have been probably pointless to draft differentiated pieces of legislation – all aimed at the digitalisation of cross-border judicial cooperation in a certain matter – given that, at the end of the day, the IT infrastructure needed for this endeavor would have been materially the same. Urging Member States to adapt
22. Kramer (n 15).
their courtroom and equivalent facilities in light of this digital shift, the EU legislature rightly concentrated all its efforts to draft a sole, comprehensive and directly applicable legal tool in which all the major changes, in all matters of judicial cooperation, are provided. In this light, this approach also reveals something deeper: the EU considers digitalisation as a ‘neutral’ process, that is, an effectiveness-enhancing tool in cross-border civil, commercial and criminal procedures without any value-related impact whatsoever.23
At the first glance, still, this comprehensiveness – which is one of the main positive features of the Regulation – might seem, at the same time, somehow confusing. After all, albeit with some core principles (e.g., mutual recognition), the many sectors of justice are informed by different principles, serve different goals and are based on diverse rationales.. These divergences cannot simply be disregarded as they play a role in shaping the main features current systems of judicial cooperation. Imposing digitalisation in both fields, with such a comprehensive approach, could therefore raise different concerns.
It is not the purpose of this Long-Read to dig into those theoretical perspectives; however, suffice it to note that these structural divergences do have a role in enhancing the complexity of the Regulation. This seems clear when it comes to understand some basic concepts that forms its kernel. For instance, the establishment of a European electronic access point in civil and commercial matters is presented as a tool to enhance access to justice. It is true – in civil law, access to justice is a concept that can be tantamount to the notion of locus standi, that is, the capacity for the claimant to initiate an action before a civil court, against the defendant. However, access to justice is criminal procedure does not equate to locus standi; typically, the concept refers rather to the capability of the victims to seek legal redress for the harm they suffered from the criminal offence.24
In other words, the Regulation considers an angle of ‘access to justice’ – the privatistic-oriented one – for crossborder civil and commercial proceedings, while bypassing the other angle – the public-oriented one – with regard to transnational criminal proceedings, restricting for the victims the possibilities offered by digitalisation. This demonstrates that, at least in this very narrow field, the EU legislature was aware of the divergencies between judicial cooperation in civil and commercial matters and the one in criminal matters. At the same time, however, this enhanced the complexity of the Regulation as it created a digitalisation with a scope of application depending on a ‘variable geometry’.
As anticipated, the only provision that governs communication between competent authorities and end users (i.e., natural or legal persons) is Article 4.25 This article establishes the European electronic access point, intended as a central digital hub where individuals or entities can obtain information, launch proceedings, exchange documents,
23. As was aptly repoted in e-Justice (2022), ‘automation and user data can tend to treat everyone as an interchangeable user, but people have different needs and strengths based on gender, abilities, age, race and ethnicity. Digital processes can rely on inputs that appear neutral but in fact replicate biases, make assumptions and limit the user’s options.’
24. Defendants’ capability to effectively challenge the accusation or to ‘stay’ at trial before a court of law is traditionally considered under other labels, e.g., ‘fair trial rights’ or ‘defence rights’.
25. Kramer (n 15) 7.
and interact with cross-border proceedings within EU Member States but solely in civil and commercial matters (Article 4(4) thereof ). This provision clearly enhances access to justice, as noted in Recital 27 However, this facilitation does not extend to criminal matters, where no such portal is explicitly provided. In other words, the Regulation, while striving to modernise and simplify judicial cooperation, takes a more cautious stance with regard to judicial cooperation in criminal matters. This could be – rightly – due to various factors, including sovereignty issues26 and the fragmentation of criminal justice systems across Member States.27 Same old issues, not novel at all.28 Nonetheless, the fact remains that the Regulation does not apply the ‘digital-by-default’ principle to judicial communications between suspects or accused persons (or, broadly, those individual concerned) and competent authorities in cross-border criminal proceedings.
This is not necessarily a shortcoming of the whole discipline. Optimistically, one could also maintain that a common digital hub for communication in transnational criminal proceedings might be too complex or premature. Civil and commercial disputes, often dealing with less sensitive issues, might serve as a testing ground before expanding to the more sensitive area of criminal law. However, this approach highlights that the significant improvements in access to justice brought by EU legislation have been more pronounced in areas outside of judicial cooperation in criminal matters.
IV. The way forward—an ‘invisible hand’ towards domestic digitalisation
In 1776, Adam Smith published his masterpiece, ‘The Wealth of Nations’, in which he adopted the metaphor of the ‘invisible hand’ to describe the unintended social benefits resulting from individual actions in market dynamics. A similar phenomenon might be triggered by the Regulation. What the latter aims to achieve, namely, the digitalidation of justice systems in relation to transnational procedures, implies several side effects. There are indeed at least two potential developments of such a digital shift imposed on Member States: (i) indirectly promoting a digitalidation of national systems to be applied to domestic cases; (ii) and widening the option for suspects, accused, convicted or affected persons to request for digital presence, even in purely domestic proceedings. As for the first point, it suffices to note that digitalising cross-border criminal proceedings may success only where national frameworks are already digitalised as well. Why is this so? Cross-border digitalisation requires a robust IT infrastructure that can support secure communication, data exchange, and processing across different jurisdictions. Unsurprisingly enough, such solid infrastructure shall be built upon a digitalised domestic system
26. In general, Member States might be reluctant to cede control or somehow standardize criminal procedures to the extent required by a common digital platform through which suspects and accused persons may launch requests or file claims or communicate directly with the competent authorities.
27. It seems even obvious to recall that each Member State has its own criminal justice system, different standards of proof, divergent confidentiality and secrecy rules, and different approaches on digitalization, which might not easily align with a one-size-fits-all digital solution, such as a European electronic access point in criminal matters.
28. It may also be argued that, at least for what concerns access to the case file, the acquis communautaire is already set in Article 7(2)(3) of Directive (EU) 2012/13 on the right to information in criminal proceedings, which provides for the suspects and accused persons’ right to access to the materials of the case. Nevertheless, this provision – where applicable to a digital case file – would cover partly the potentialities that the European electronic access point holds within transnational civil and commercial procedures (e.g., the possibility to file complaints or launch specific requests).
If a country’s national justice system is not digitalized, it would lack the necessary technological foundation to interface effectively, in turn, with other countries’ systems.29 What is more, digitalised cross-border procedures typically demand real-time access to information, such as the status of legal proceedings, court schedules, or gathered evidence. Again, this real-time coordination is only possible if the underlying national systems are also digitalised, allowing for immediate updates and communication.30
While the main aim of prompting an IT improvement in transnational proceedings within the EU is within the scope of Articles 81 and 82 TFEU, there is no room for the EU to impose, at least at the moment, a wideranging digitalization of domestic procedures, this approach possibly raising concerns over the compliance with the principle of subsidiarity and the effective respect of the Member States’ procedural autonomy. This explains why the EU refrained from imposing the burden on Member States to digitalise national proceedings as a whole. Still, as aptly pointed out, ‘even if the EU were to limit itself to promoting digitalisation only in relation to crossborder litigation, it would also be promoting it, albeit indirectly, at the purely internal level’.31
Secondly, the EU request to digitalise those transnational criminal proceedings falling within the scope of judicial cooperation in criminal matters would transform the soul of domestic criminal procedures. The main changes will concern, at the very least, national provisions on videoconferencing. Whereas Article 6 of the Regulation provides for the use of such technology in relation to cross-border proceedings, this circumstance cannot but stimulate domestic frameworks not only to legislate on the use of videoconferencing in purely domestic situations, but also to practically equip courtrooms with the necessary infrastructure. As Europe’s courtrooms become increasingly digitilased, it is but a short leap to envisage a scenario where defendants might routinely participate in their trials through digital means. This progression is not merely speculative – it is anticipated with near certainty, given that the technological capabilities will soon be at hand for Member States to offer such participation, ‘with patience and perseverance’.32
While peculiarities of domestic systems should be preserved when it comes to physical presence at trial, the stage seems to be set for a scholarly debate on what might be termed the ‘right to be present online’ in criminal proceedings.33 So far, the CJEU emphasises Member States’ procedural autonomy in this realm – it found very recently in FP and Others that the issue of ‘whether the Member States may provide that the accused person may, at his or her express request, participate in the hearings in his or her criminal trial by videoconference’ falls within the scope of national law.34 The right to digital presence stands on the brink of becoming a topic of serious legal
29. For instance, without digital channels of communications already in force at the domestic level, it would be impossible to communicate via digital means in a secure and timely manner across borders as well.
30. Contrarywise, a non-digitalized domestic system would rely on slower, manual processes, creating delays and inefficiencies that would undermine the effectiveness of cross-border digitalization.
31. Gascón Inchausti (n 3) 536.
32. Kramer (n 15) 8.
33. See, for a comprehensive study on the defendant’s right to a remote trial hearing, Panzavolta, A defendant’s right to videoconference? Looking at online participation in criminal trials in a different light, forthcoming.
34. The CJEU did not rule on the merit of other two cases involving videoconferencing in domestic criminal procedures (AVVA and Linte) due to procedural reasons.
consideration, though. Currently, with the exception of extraordinary circumstances or force majeure, defendants are expected to physically appear in court when duly notified of the hearing’s time and location. It may be argued that digital presence would become a right in those exceptional circumstances, Member States burdening positive obligations vis-à-vis the individual concerned to ensure his/her presence effectively at trial.35 Once the ‘digital transformation’ of Europe’s courtrooms will be complete, however, we would have reached an ideal scenario to seriously contemplate the emergence of this new right, in a broader set of circumstances, ensuring that justice keeps pace with technology.36
Time will tell us whether the ‘promise of digital justice’ will promote, rather than degrade, the quality of justice,37 reducing disadvantages or rather creating new vulnerabilities, granting effectiveness to brand-new procedural guarantees in this brave new digital environment.
35. Cfr. the Opinion of AG Medina (Case C-760/22, para. 45): ‘there can be situations in which the accused person wants to be present by videoconference at the trial. Videoconferencing can be used as a tool to facilitate the exercise of the right to be present at the trial in situations in which it would be impossible or extremely difficult for the accused person to be physically present at the trial’.
36. On the relation between digitalisation and procedural rights, see Panzavolta, Some critical reflections on the procedural rights Directives, in EU Law Live (Weekend edition), 25 September 2023, 12–14.
37. Fraley (n 8) 55.
HIGHLIGHT F THE WEEK S O
Commission Decision on State aid granted by Denmark and Sweden to finance the Øresund Fixed Link, published in OJ
Monday 30 September
Official publication was made of Commission Decision (EU) 2024/2467 of 13 February 2024 on State aid measures, granted by Denmark and Sweden, in favour of the Øresundsbro Consortium, in respect of the Øresund Fixed Link.
Read on EU Law Live
General Court to hear case concerning action against Commission’s Decision closing market investigation against Microsoft under the DMA
Monday 30 September
An action, brought on 11 July 2024, by Opera Norway against the European Commission, seeking the annulment of Commission Implementing Decision of 12 February 2024 closing the market investigation for Microsoft, under the DMA, was officially published in the OJ: Opera Norway v Commission (T-357/24).
Read on EU Law Live
Regulation (EU) 2024/2516 amending Regulation (EU) 2019/1009 as regards the digital labelling of EU fertilising products, published in OJ
Monday 30 September
The new regulation allows manufacturers and importers to decide whether to use physical or digital labels.
Read on EU Law Live
Six European banks file legal action against SRB over re-adoption of the decision on the calculation of the 2021 ex-ante contributions to the Single Resolution Fund
Monday 30 September
Several financial institutions filed legal actions against the Single Resolution Board (SRB) concerning the re-adoption of the decision on the calculation of the 2021 ex-ante contributions to the Single Resolution Fund (SRF).
Read on EU Law Live
Preliminary reference on the interpretation of the Citizens Rights Directive in case of refusal of applicant’s retention of residence card
Monday 30 September
A reference for a preliminary ruling from the Court of Appeal (Ireland), made on 9 July 2024, in Minister for Justice v I.T., a case concerning a final determination, issued by the Irish authorities, on 22 November, 2021, refusing the applicant’s retention of his residence card. which would have enabled him an indefinite residence in Ireland, was officially published in the OJ: Deldwyn ( C-477/24).
Read on EU Law Live
Preliminary ruling request on the interpretation of asset ownership in discretionary trusts under EU sanctions Law, published in OJ
Monday 30 September
A request for a preliminary ruling was lodged by the Tribunale Amministrativo Regionale per il Lazio (Italy) in the case SX Ltd v. Ministero dell’Economia e delle Finanze and Others (Case C-476/24), which concerns the interpretation of Regulation (EU) 269/2014, specifically in relation to assets held in discretionary trusts where the beneficiary is listed under sanctions in Annex I of the Regulation.
Read on EU Law Live
Court of Justice to clarify additive restrictions for e-cigarettes: DSE International & British American Tobacco Cases
Monday 30 September
The Belgian Raad van State referred two related cases to the Court of Justice regarding the regulation of nicotine-containing liquids in electronic cigarettes.
Read on EU Law Live
First action brought under the Subsidiarity Protocol by the French National Assembly, contesting Regulation on asylum and migrant management, published in OJ
Monday 30 September
An action brought by the Assemblée nationale de la République française (National Assembly of the French Republic) against the European Parliament and the Council of the EU, comprising the first action to have been brought under Protocol (No 2) of the TEU on the application of the principles of subsidiarity and proportionality, was officially published in the OJ. Read on EU Law Live
Court of Justice streaming hearing of case on whether EU law precludes arbitral award from being given force of res judicata
Tuesday 1 October
The hearing of the Court of Justice’s Grand Chamber in Royal Football Club Seraing (C-600/23), a case concerning a preliminary reference on whether Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights preclude an arbitral award from being given the force of res judicata and probative value vis-à-vis third parties, where the review of conformity with EU law has been carried out by a court of a State which is not an EU Member State, was streamed on the Court of Justice’s website.
Read on EU Law Live
Notice of initiation of an expiry review of the anti-dumping measures to imports of ironing boards from China, published in OJ
Tuesday 1 October
The European Commission initiated an expiry review of existing anti-dumping measures on ironing boards imported from the People’s Republic of China (PRC).
Read on EU Law Live
Hearing of case on possible discriminatory nature of Danish rules reducing social housing in so-called ‘transformation areas’, streamed by Court of Justice
Tuesday 1 October
The Court of Justice’s Grand Chamber hearing in Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge (C-417/23), a case concerning the interpretation of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, was streamed on the Court of Justice’s website.
Read on EU Law Live
Preliminary ruling request on access to information and fair procedure in asylum and return cases, published in OJ
Tuesday 1 October
Official publication was made of case Multan (C-431/24), referred by the Rechtbank Den Haag, zittingsplaats Roermond (Netherlands), in which the applicant, W, has challenged the Staatssecretaris van Justitie en Veiligheid regarding the handling of information used in a decision concerning their case.
Read on EU Law Live
Court of Justice to rule on retroactive application of corrected EU Regulations in state aid recovery disputes
Tuesday 1 October
Official publication was made of two related cases, On Air Media Professionals S.R.L. v Agenția pentru Întreprinderi Mici și Mijlocii (C-416/24) and Different Media SRL v Ministerul Antreprenoriatului și Turismului – Agenția pentru Întreprinderi Mici și Mijlocii, Atragere de Investiții și Promovare a Exportului Iași (C-417/24), both revolving around the retroactive correction of the Romanian language version of Regulation (EU) 651/2014, which governs State aid rules.
Read on EU Law Live
Preliminary reference on compatibility with EU law of additional tax obligation imposed on electricity producers from renewable sources, published in OJ
Tuesday 1 October
Official publication was made of of a request for a preliminary ruling from Curtea de Apel București (Romania), lodged on 5 June 2024, in the context of an action brought by PPC Renewables Romania, which operates on the electricity and natural gas markets, against Romanian authorities, seeking compensation for damage arising by the imposition of an additional tax obligation by the Romanian State on producers of electricity from renewable sources.
Read on EU Law Live
Summary of Commission Decision terminating DSA proceedings against TikTok in relation to its TikTok Lite Rewards software, published in OJ
Wednesday 2 October
Official publication was made of the summary of the Commission Decision of 5 August 2024 relating to a proceeding under Article 71 of the Digital Services Act in case DSA.100121 - TikTok Lite Rewards programme.
Read on EU Law Live
Information note on Regulation 2021/821: overview of Member States’ measures on dual-use items, published in OJ
Wednesday 2 October
Official publication was made of the INFORMATION NOTE - Regulation (EU) 2021/821 of the European Parliament and of the Council setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items: Information on measures adopted by Member States in conformity with Articles 4, 5, 6, 7, 8, 9, 11, 12, 22 and 23.
Read on EU Law Live
Action for annulment brought by Belgian and French Ordre des avocats against Council concerning restrictive measures to Russia, as regards legal advisory services, dismissed by General Court
Wednesday 2 October
The General Court delivered its judgment in Cases Ordre néerlandais des avocats du barreau de Bruxelles and Others v Council (T-797/22), Ordre des avocats à la cour de Paris and Couturier v Council (T-798/22), ACE v Council (T-828/22), by which it upheld the validity of restrictive measures implemented in response to Russia’s aggression against Ukraine, specifically the prohibition on providing legal advisory services to the Russian Government and Russian entities.
Read on EU Law Live
General Court upholds Commission’s denial of TotalEnergies’ document access in antitrust case
Wednesday 2 October
The General Court ruled on case TotalEnergies Marketing Nederland v Commission (T 332/22), in which TotalEnergies Marketing Nederland NV challenged a decision made by the European Commission regarding access to documents related to an antitrust case.
Read on EU Law Live
General Court upholds Commission Decision finding compensation resulting from execution of arbitral award as constituting unlawful State aid
Wednesday 2 October
The General Court, sitting in its Extended Composition formation, delivered its judgment in three joined cases concerning actions against Commission Decision (EU) 2015/1470 of 30 March 2015 on State aid SA.38517 (2014/C) (ex 2014/NN) implemented by Romania [Arbitral award Micula v Romania of 11 December 2013 (notified under document C(2015) 2112)].
Read on EU Law Live
General Court upholds European Agency for Safety and Health at Work (EU-OSHA)’s two-year exclusion of VC from public procurement
Wednesday 2 October
The General Court delivered its judgment in case VC v EU-OSHA (T-126/23). The case involves VC against the European Agency for Safety and Health at Work (EU-OSHA) concerning the exclusion of VC from public procurement procedures for two years due to “serious professional misconduct”.
Read on EU Law Live
General Court clarifies method for calculating fine imposed for infringement of Article 101 TFEU
Wednesday 2 October
The General Court handed down its judgment in a case concerning an action for annulment against Commission Decision C(2022) 324 final of 25 January 2022, amending a decision by which it imposed a fine for infringement of Article 101 TFEU on two telecommunications operators, including the applicant: Pharol v Commission (T-181/22).
Read on EU Law Live
Member states’ representatives appoint nine judges and an advocate-general to Court of Justice of the European Union
Wednesday 2 October
Representatives of EU member states appointed two judges and one advocate general at the Court of Justice, as well as seven judges at the General Court.
Read on EU Law Live
General Court rejects actions for annulment of Commission Decision imposing fine for breach of Article 101 in the metal packaging industry
Wednesday 2 October
The Extended Composition of the General Court handed down judgment in two cases concerning actions for annulment against Commission Decision C(2022) 4761 final of 12 July 2022 relating to a fine imposed for a breach Article 101 TFEU (AT.40522 — Metal Packaging (ex ‘Pandora’)): Crown Holdings and Crown Cork & Seal Deutschland v Commission (T587/22) and Silgan Holdings and Others v Commission (T-589/22).
Read on EU Law Live
Action against Commission Implementing Regulation imposing anti-dumping duty on Chinese imports of certain iron or steel fasteners, rejected by General Court
Wednesday 2 October
The Third Chamber of the General Court rendered its judgment in a case concerning an action, by which the applicants have claimed the annulment of Commission Implementing Regulation (EU) 2022/191 of 16 February 2022 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China: CCCME and Others v Commission (T-263/22).
Read on EU Law Live
Commission proposes an additional 12-month phasing-in period for implementing the EU Deforestation Regulation (EUDR)
Thursday 3 October
The European Commission proposed an additional phasing-in period for implementing the EU Deforestation Regulation (EUDR), which aims to prevent goods contributing to deforestation from being sold in the Union.
Read on EU Law Live
EBA and ESMA publish their 2025 Work Programmes
Thursday 3 October
The European Banking Authority (EBA) and European Securities Market Authority (ESMA) have published their respective Work Programmes, outlining their key strategic priorities for the year 2025.
Read on EU Law Live
EU-Guinea-Bissau Fisheries Partnership 2024-2029: Agreement, Protocol, and fishing opportunities allocation, published in OJ
Thursday 3 October
Official publication was made of Council Decision (EU) 2024/2588 of 10 September 2024 on the signing, on behalf of the European Union, and provisional application of the Protocol on the implementation of the Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau (2024–2029); Protocol on the implementation of the Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau (2024–2029) and Council Regulation (EU) 2024/2591 of 10 September 2024 on the allocation of fishing opportunities under the Protocol on the implementation of the Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau (2024–2029).
Read on EU Law Live
Commission Infringement Package October 2024 published
Thursday 3 October
The European Commission made public its package of infringement decisions for the month of October, thus showcasing its legal actions against Member States for failing to comply with their obligations under EU law.
Read on EU Law Live
Commission considers Hungary’s Law on Defence of Sovereignty to be incompatible with EU fundamental rights and freedoms, and data protection rules
Thursday 3 October
The European Commission referred Hungary to the Court of Justice, in connection to its national law on the ‘Defence of Sovereignty’, which establishes an ‘Office for the Defence of Sovereignty’, which will investigate activities said to be carried out in the interest of another State, foreign body, organisation, or natural person, allegedly liable to jeopardise the sovereignty of Hungary.
Read on EU Law Live
Decisions appointing nine judges and one advocate general to the Court of Justice of the European Union, published in OJ
Friday 4 October
Official publication was made of four Decisions of the representatives of the Member States appointing two judges and one advocate-general to the Court of Justice, as well as seven judges to the General Court.
Read on EU Law Live
Court of Justice: Access to mobile phone data by police is not limited to combating serious crime, but must be proportionate and subject to prior authorisation
Friday 4 October
The Court of Justice, sitting in its Grand Chamber, handed down judgment in a case on a preliminary ruling request concerning, in essence, whether the power of public authorities to process data stored on mobile telephones, with the aim of investigating a minor criminal offence, entails a sufficiently serious interference with the right to privacy and data protection, capable of limiting such processing: Bezirkshauptmannschaft Landeck (Tentative d’accès aux données personnelles stockées sur un téléphone portable) (C-548/21).
Read on EU Law Live
Manifest violation of freedom of press justifies non-execution of judgment under Brussels I Regulation
Friday 4 October
The Court of Justice handed down judgment in Real Madrid (C-633/22), a request for a preliminary ruling from the French Court of Cassation concerning the interpretation of the public policy provision contained in Article 34 of the Brussels I Regulation (Regulation 44/2001).
Read on EU Law Live
Competitors may bring proceedings against a person by claiming a breach of GDPR requirements on the basis of unfair commercial practices, finds Court of Justice
Friday 4 October
The Court of Justice’s Grand Chamber delivered its judgment in Lindenapotheke (C-21/23), a case regarding a preliminary ruling request on the interpretation of the GDPR, in the context of an action seeking an injunction to prevent the sale of pharmacy-only medicines via the Amazon online trading platform, without obtaining the customer’s prior consent to the collection, processing and use of his or her health data.
Read on EU Law Live
Court of Justice annuls EU-Morocco trade agreements, orders that labelling of tomatoes and melons harvested in Western Sahara refer to that territory as the country of origin
Friday 4 October
The Court of Justice handed down judgment in Commission v. Front Polisario (C-778/21 P, C-798/21 P, C-779/21 P, C-799/21 P) and in Confédération paysanne (C-399/22), the latest – and final – episode in the saga concerning the trade agreement, regarding fisheries and agricultural products, concluded between the EU and Morocco.
Read on EU Law Live
Herbaria Kräuterparadies II: Products imported from third countries may use that country’s organic production logo but not that of EU, unless fully compliant with EU law
Friday 4 October
The Court of Justice delivered its Grand Chamber judgment in a case concerning a preliminary ruling request on whether the organic production logo of the EU may be used for a processed foodstuff, which is imported for the purpose of placing it on the market as an organic product, although it contains, in addition to plant products, minerals and vitamins of non-plant origin: Herbaria Kräuterparadies II (C-240/23).
Read on EU Law Live
Lithuania and Others v. Parliament and Council: Court of Justice largely upholds legality of Mobility Package
Friday 4 October
The Court of Justice handed down judgment in Lithuania and Others v. Parliament and Council (C-541/20 to C-555/20), a case concerning actions brought by seven Member States against the Mobility Package on road transport, adopted by the EU legislator in 2020.
Read on EU Law Live
FIFA transfer rules incompatible with Articles 45 and 101 TFEU, rules Court of Justice
Friday 4 October
The Court of Justice handed down judgment in FIFA (C-650/22), in relation to a dispute concerning FIFA’s rules on the International Transfer Certificate (‘ITC’), a document which players registered at one national football association must obtain before being able to register with another football association.
Read on EU Law Live
AG Collins invites Court of Justice to dismiss Commission’s action against Malta’s ‘citizenship by investment’ scheme
Friday 4 October
Advocate General Collins delivered his Opinion in Commission v. Malta (Citizenship by investment) (C-181/23), following the Commission’s infringement action against Malta’s 2020 citizenship scheme, by which individuals can apply to be naturalised upon fulfilling a number of conditions primarily of an economic nature.
Read on EU Law Live
Court of Justice: Designation of third country as safe countries of origin must extend to its entire territory, according to EU law
Friday 4 October
The Court of Justice handed down judgment in a case concerning a preliminary ruling request, by which the referring court sought the interpretation of certain provisions of Directive 2013/32/EU on common procedures for granting and withdrawing international protection, in the context of an action challenging a decision rejecting the an application for international protection as manifestly unfounded: Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky (C406/22).
Read on EU Law Live
EU citizenship does not allow Member State’s refusal to recognise a person’s change of name and gender lawfully obtained in another Member State
Friday 4 October
The Grand Chamber of the Court of Justice rendered its judgment in a case concerning a preliminary reference on the interpretation of Article 2 TEU, Articles 18 and 20 TFEU, as well as Article 21(1) thereof, and Articles 1, 7, 20 and 21 of the Charter of Fundamental Rights: Mirin (C-4/23).
Read on EU Law Live
EPPO v. IRO and FJLR: AG Collins interprets scope of Article 42(1) of EPPO Regulation
Friday 4 October
Advocate General Collins delivered his Opinion in Parquet européen (C-292/23), a request for a preliminary ruling concerning the compatibility with Union law of a provision of national law excluding from judicial review a procedural act of the European Public Prosecutor’s Office (EPPO).
