The Week
2 - 6 December 2024
TABLE OF CONTENTS
IN-DEPTH:
The Polisario II judgment: tensions with International Law and with the EU Political Institutions
Pola Cebulak & Kushtrim Istrefi
Merger Incompatibility requires more than Dominance (Cases T-58/20, T-64/20 and T-69/20)
Jugwal Doyen
White Tablecloths for Pilots vs Fast Food for Stewardesses: Sex Discrimination and the Limits of Equal Pay in EU law (C-314/23, Air Nostrum and Others)
Raphaële Xenidis
Membership in a Political Party or Movement contributes to the Effectiveness of the Political Rights granted to EU Citizens by Article 22 TFEU – Commission v Czech Republic (C-808/21) and Commission v Poland (C-814/21)
Margherita Branca
Generic Drugs and the Limits of Reliance: when is the Original not enough? (T-223/20)
Ayana Dootalieva
Renewed Hopes for the European Commission in Enforcing General and Structural Violations of the Habitats Directive? (Case C-47/23, European Commission v Federal Republic of Germany)
Francesco Maletto
Breaking Bonds: EU General Court confirms Cartel Findings and Fines in SSA Bond Market Case (T-386/21 and T-406/21)
Camila Sánchez
THE LONG READ:
Neither Intangible nor Sacred? Long Live the Rule of Law!
Laurence Burgorgue-Larsen
HIGHLIGHTS OF THE WEEK
IN-DEPT H
The Polisario II judgment: tensions with International Law and with the EU Political Institutions
Pola Cebulak & Kushtrim Istrefi
On 4 October 2024, the Court of Justice rendered a landmark ruling in Polisario II (C-779/21 P and C-799/21 P). The case was brought by Front Polisario, a self-determination movement of the Sahrawi people of Western Sahara. Western Sahara is a non-self-governing territory which since 1975 has been occupied and largely controlled by Morocco. While the UN and the International Court of Justice recognises the right to self-determination of Western Sahara, the Sahrawi people never had the chance to exercise this right and its legal personality remains contentious in the international plane (Naili (2022)). The CJEU has never had to deal directly with this conflict or the issue of statehood, but has addressed it indirectly in cases concerning the practice of importing products from Western Sahara to the EU under the EU-Morocco Association Agreement.
The EU-Morocco Association Agreement (AA) has been applied to products imported from Western Sahara. This practice was challenged by Front Polisario in a series of cases. When the Court of Justice decided in 2016 (C-104/16 P) and 2018 (C-266/16) that the EU-Morocco AA could not possibly apply to Western Sahara, as this would be in violation of international law, the Council and Commission interpreted it in a minimalistic and instrumental manner. In 2019, the Council concluded amendments to the EU-Morocco AA as well as a new Sustainable Fisheries Partnership Agreement (SFPA) that expressly foresees its application to the waters of Western Sahara. The ratification of these new agreements was struck down by the General Court in 2021 (T279/19; T-344/19 and T-356/19). The Court of Justice upheld this ruling on appeal in Polisario II. However, the reasoning it applied differs in part from that of the General Court. Polisario II is a salient ruling for international law and for European politics. Other blog posts have already launched debates about the implications of this judgment for consent and the law of occupation in international law. Building upon that, we highlight two controversies remaining relating to this judgment – tensions with international law and with European political institutions.
Polisario II Ruling: Tensions with International Law and European Politics
In Polisario II, the Court considered the legality of the Council decision to conclude the update to the EUMorocco AA. The Court made important findings regarding the standing of individuals under Article 263(4) TFEU (first, second and third grounds of appeal) as well as regarding the concepts of relative effects of treaties, consent and self-determination under international law (fourth and fifth grounds of appeal). Both findings relate to a highly sensitive matter on the international plane and have also led to tension regarding the power of EU institutions.
The first such tension was raised with regard to the standing of Front Polisario. A key bottleneck point was the emergence of an applicant who could and would bring the case before the bench in Luxembourg. In principle, the procedure meant to check the legality of international agreements is the Opinion procedure (Article 218(11) TFEU). While this ex ante judicial review could have given the Court a possibility to make a broader ruling on the compatibility of the amendments of the EU-Morocco AA with public international law, no Member State or EU institution initiated it. Instead, the case was brought by an external actor, Front Polisario, representing the concerned Sahrawi people.
On the question of admissibility of the direct action by Front Polisario, the Court dismissed the arguments of the Commission, Council and France. It ruled that Front Polisario is a self-determination movement involved in the UN decolonization process, and thus a legitimate party to bring proceedings (C-779/21 P and C-799/21 P, para. 67). According to the Court, the EU-Morocco AA, as amended in 2019, ‘directly affects the legal situation of the people of Western Sahara in its capacity as holder of the right to self-determination’ (C-779/21 P and C-799/21 P, para. 95). This means that Front Polisario is also directly and individually concerned.
Next, the Court explored whether the alleged lack of consent of the Sahrawi people could even lead to invalidating the EU ratification of the international agreement (C-779/21 P and C-799/21 P, para. 125). The Court answers this question in the affirmative relying on the principle of relative effects of treaties, expressed in Article 34 of the Vienna Convention on the Law of Treaties (VCLT) (para. 131). It must be noted that while Article 34 VCLT speaks about the consent of third States, the Court has interpreted that to also include the consent of third parties. This flexible interpretation of third States as third parties is not to be found in international law but is an autonomous interpretation of the Court adopted in Brita in 2010.
The Court concluded that the decision to ensure the consent of the people of Western Sahara is an obligation under international law and thus the Council has no margin of discretion to undermine it (para. 134). The Court also found that, in principle, where there was a lack of consent necessary under international law, it could declare an act of EU law invalid.
The Court then went on to consider the question of consent – whether it has been assured explicitly and whether it could be implied. The Council relied on the consultation process conducted by the Commission and the EU External Action Service. The Court agreed with the General Court in holding that this consultation could not be considered as sufficient consent to justify the extension of the implementation of the EU-Morocco AA to the territory of Western Sahara. It was lacking ‘as to both the scope of that consultation process and the scope of the requirement’ (C-779/21 P and C-799/21 P, para. 140).
The Court disagreed with the General Court, which ruled in 2021 that the only way for the people of Western Sahara to express consent was explicitly. The Court of Justice, instead, emphasised that international law does not prescribe such consent to be expressed in any particular form (C-779/21 P and C-799/21 P, para. 152). The Court further decided that the consent of a third party that is subject to an international agreement may also be presumed so long as two conditions are met. First, the agreement in question must not give rise to an obligation
for that people. Second, the agreement must provide that the people receive a specific, tangible, substantial and verifiable benefit from the exploitation of that territory’s natural resources which is proportional to the degree of that exploitation. The Court held that the first condition is satisfied, because, even though the EU-Morocco AA changes the legal situation of the people in the territory of Western Sahara, it does not create obligations for the Sahrawi people as a subject of international law (C-779/21 P and C-799/21 P, para. 147). However, it found that the second condition for implying consent is not fulfilled in this case. The benefit for the people must be accompanied by guarantees, in particular with regard to sustainable development, and a regular control mechanism of those guarantees (C-779/21 P and C-799/21 P, para. 153). Those are absent in the case of Western Sahara.
Throughout its reasoning, the Court also affirms the right to self-determination of the Sahrawi people, however small and dispersed (C-779/21 P and C-799/21 P, paras. 127-129). The Court distinguished the Sahrawi people from the population or inhabitants of Western Sahara, who are majority Moroccan.
The final ruling of the Court annuls the Council decision concluding the AA. However, the Court of Justice decides to maintain the effects of the contested decision for a period of 12 months on grounds of legal certainty. This legal certainty logic has been used by the Court before in the context of EU foreign policy, most notably in its Kadi judgment back in 2008, when the EU Court annulled the sanctions that blacklisted Mr Kadi, but also allowed the EU institutions the time to repair the legal shortcomings of their sanctions list.
Conclusions
This judgment is a milestone in terms of the EU’s engagement with international law. The Court did interpret international law as including some red lines that EU institutions could not cross, in spite of their discretion in the domain of foreign policy. The Polisario saga is also a story of tensions between the judicial and political branches of the EU. The Court of Justice insisted on observance of international law by the EU as a global actor. The Court concluded that the EU is bound ‘to the strict observance and the development of international law, including respect for the principles of the Charter of the United Nations’ and that the margin of discretion of the Council is limited by international law, which includes the right to self-determination (C-779/21 P and C-799/21 P, para. 133). The principle of self-determination is at the root of the requirement of consent, which leads the Court to invalidate the act concluding the AA. In interpreting international law, in particular the concept of consent, the Court proceeds from the perspective of the autonomy of the EU legal order and develops its own conditions for implying consent of a people holding the right to self-determination. These autonomous interpretations of concepts of international law might create tensions with international law in the future. Furthermore, it appears that in the end the Court has equated the concept of implicit consent with that of benefits. In this vein, the Court opens a possibility for the EU and Morocco to ensure the ‘consent’ of the Sahrawi people in the future, without them having to grant it expressly. This could prove the Achilles heel of Polisario II as it paves the way for the EUMorocco deals to continue while maintaining the Moroccan occupation of Western Sahara.
The first responses to the Polisario II ruling from the EU institutions seem to suggest that they will try to limit the effects of the judgments and find a way to renew the bilateral agreements with Morocco. President von der Leyen and High Representative/Vice-President Borrell issued a statement on the day of the judgment underlining the principle of pacta sunt servanda, rather than self-determination or relative effects of treaties. A few days later, the Moroccan Minister of Foreign Affairs referred to the judgment as ‘out of sync with reality’ and ‘without impact’.
On 29 October 2024, French President Emmanuel Macron addressed the Moroccan Parliament reaffirming ‘Moroccan sovereignty’ over Western Sahara, while also emphasizing the intention of French investments to benefit the local populations. These reactions further demonstrate the tensions between international law and the political agenda of EU institutions, which the Court has to navigate
Pola Cebulak Assistant Professor in European Law at the Vrije Universiteit Amsterdam. She holds the JUDILL Jean Monnet Chair on Judges vs Illiberalism: Legal Mobilization for the Rule of Law.
Kushtrim Istrefi Assistant Professor of Human Rights Law and Public International Law, and Coordinator of the Research Platform on Peace, Security and Human Rights at Utrecht University
Cebulak, P. and Istrefi, K.; “The Polisario II judgment: tensions with International Law and with the EU Political Institutions”, EU Law Live, 04/12/2024, https://eulawlive.com/op-ed-the-polisario-ii-judgment-tensions-with-international-law-and-with-the-eu-political-institutions/
Merger Incompatibility requires more than Dominance (Cases T-58/20, T-64/20 and T-69/20)
Jugwal Doyen
1. Legal Context
In 2018, Vodafone notified the European Commission of its project to acquire Liberty Global’s telecommunications operations in Czech Republic, Hungary, Romania, and Germany. To address competition concerns identified by the European Commission, Vodafone proposed a set of commitments, mainly of behavioural nature, adjusted after a market inquiry. The transaction was finally approved, under conditions, on 18 July 2019 (M.8864).
In 2020, Deutsche Telekom, NetCologne, and Tele Columbus, all three based in Germany, respectively challenged the European Commission’s decision before the General Court, alleging the European Commission committed manifest errors in its assessment of the transaction’s competitive effects and that the set of commitments proposed was unsuitable to resolve the competition concerns arising from the transaction.
On 13 November 2024, the General Court delivered three judgments, NetCologne v. European Commission ( T58/20), Deutsche Telekom v. European Commission ( T-64/20) and Tele Columbus v. European Commission ( T69/20), in which it dismissed the three undertakings’ appeals against the European Commission’s conditional clearance decision (hereafter, ‘the present judgements’). By doing so, it confirms the European Commission’s decision authorising Vodafone’s acquisition of Liberty Global’s telecommunications activities in the four countries concerned.
2. Analysis
The present judgments are of particular interest when analysed in relation to the CK Telecoms case (C-376/20 P) in which the Court of Justice clarifies the standard for controlling horizontal mergers in oligopolistic markets, an area recital 25 of the Merger Regulation 139/2004 is specifically intended to regulate. In the CK Telecoms case, the Court of Justice rejected the General Court’s strict approach on the standard of proof expected from the European Commission when adopting a decision of incompatibility, and clarified that for a concentration to be compatible or incompatible with the internal market, the European Commission must demonstrate, by means of sufficiently significant and concordant evidence, that the concentration concerned would or would not significantly impede effective competition (C-376/20 P, para. 87).
In the present judgements, the General Court, while recalling the precedent set out in the CK Telecoms case, provides some insights on (2.1) the assessment of the competitive relationship between the parties in a concentration, (2.2) the evidential requirements for establishing the absence of a significant impediment to effective competition and (2.3) the appropriateness of behavioural commitments for resolving the competition concerns identified.
2.1
Clarification of Certain Criteria for Assessing the Competitive Relationship between the Parties to a Concentration
Firstly, to dismiss the existence of an indirect competitive relationship between the parties to a concentration, the General Court recalls that undertakings are in an indirect competitive relationship, particularly when they are subject to similar competitive pressures from other companies that they compete with directly or when other factors, such as requirements imposed by customers, similarly limit their ability to set their prices and commercial terms (T-64/20, para. 102).
The General Court underlined, regarding the fact that the parties to the concentration monitored their respective activities and compared their product offerings, that these analyses do not go beyond ‘simple commercial comparative analyses’ aimed at monitoring and possibly imitating best practices in the sector. However, this type of comparison, consisting of an analysis of market performance or best practices in the sector, including in other Member States or in third countries, cannot be qualified as an indirect competitive pressure (T-64/20, para. 104).
The General Court clarified, referring to the Commission’s response to a written question, that for a direct comparative analysis to give rise to indirect competitive pressure, there should be elements showing that the information collected in this way by one party regarding the other party was actually taken into account by the former in the context of making its commercial decisions and that this information, therefore, exerted pressure on this party by triggering a competitive reaction from it (T-64/20, para. 105).
Secondly, to dismiss the existence of a potential competitive relationship between the parties to a concentration, the General Court emphasised that where the European Commission finds, first, that the undertaking concerned has not taken any steps to enter the market within a sufficiently short period of time calculated in the light of the characteristics of the market, second, that the undertaking does not consider it economically rational and attractive for it to enter the market and, third, that the undertaking does not envisage entering the market in a significant way in the future, the European Commission may, without committing a manifest error of assessment, conclude that the undertaking in question is not a potential competitor of the other party to the concentration (T-64/20, para. 137).
2.2 Requirement of a Significant Impediment to Effective Competition as a Direct and Immediate Consequence of the Concentration
The General Court recalls that in accordance with Article 2, paragraphs 2 and 3 of Merger Regulation 139/2004, only concentrations which would significantly impede effective competition in the internal market or in a substantial part of it, in particular due to the creation or strengthening of a dominant position, must be declared incompatible with the internal market. The use of the adverb ‘in particular’ indicates that the creation or strengthening of a dominant position is one of the situations in which such an impediment can be observed.
The General Court has therefore underlined that the scenario of a concentration creating or strengthening a dominant position is not, in itself, sufficient to consider that this concentration would be incompatible with the internal market, where this would not significantly impede effective competition in the internal market or in a substantial part of it. Under the Commission v. Tetra Laval case, the General Court pointed out that the European Commission is required to carry out a prospective analysis, which consists of examining how such a transaction could modify the factors determining the state of competition in a given market in order to verify whether it would result in a significant impediment to effective competition (T-64/20, paras. 191-195).
The General Court has explained that it is not because a concentration gives rise to synergies or cost reductions in favour of the resulting entity that transaction necessarily impedes competition. Nor is it because a concentration creates or strengthens a dominant position, or that a single dominant undertaking decides on the competitive strategy and pricing policy of the merged entity throughout the national territory, that it automatically gives rise to a significant impediment to effective competition (T-69/20, para. 223).
The European Commission can only declare a concentration incompatible with the internal market if it finds a significant impediment to effective competition that is the direct and immediate consequence of the concentration. Such a significant impediment to effective competition, which would result from the future decisions of the entity resulting from the concentration, can only be considered as a direct and immediate consequence of the concentration if this future behaviour is made possible and economically rational by the change in the characteristics and structure of the market caused by the concentration (T-69/20, para. 224).
As a result, the General Court confirms that, although Vodafone held dominant position in the markets for services for the transmission of television signals to multiple-dwelling buildings, the transaction would not give rise to a significant impediment to effective competition on the relevant markets even if it strengthens Vodafone’s positions by increasing its financial power after completion of the operation.
2.3 Appropriateness of Behavioural Commitments for Resolving the Competition Concerns Identified
The General Court finds that the analysis carried out by the European Commission does not warrant any criticism for the lack of and/or inappropriateness of the commitments proposed by Vodafone. The General Court recalls the preference of the European Commission, through the Communication notice on remedies acceptable, for structural commitments, and emphasizes that behavioural commitments are not by their nature insufficient to prevent a significant impediment to effective competition, in particular due to the creation or strengthening of a dominant position, and must be assessed on a case-by-case basis as with structural commitments (T-64/20, para. 373). It is mainly the appropriateness and sufficiency of the commitments to resolve the competition concerns identified, as well as the certainty that the commitments can be implemented, that governs their acceptance (T64/20, para. 375).
The European Commission must declare an operation compatible if it is sufficiently likely that said operation, as modified by the commitments proposed by the parties to the concentration, will not significantly impede effective
competition in the internal market or a substantial part of it. The European Commission must be certain that the proposed commitments can be implemented and that they will be sufficiently viable and sustainable to ensure that the significant impediment to effective competition observed is not likely to occur in the near future (T-64/20, paras. 377-380).
3. Practical Significance
The present judgments are relevant for companies involved in concentration operations and third parties alike acting for annulment of a conditional authorisation decision by the European Commission.
The General Court refines the criteria for identifying an indirect or a potential competitive relationship between parties and underlines that a significant, direct, and immediate impediment to competition is required to declare a concentration incompatible with the internal market, in line with the CK Telecoms case.
Additionally, the General Court adopts a nuanced approach to behavioural commitments, holding that they should not be systematically dismissed in favor of structural remedies but assessed on a case-by-case basis based on their relevance and feasibility.
Jugwal Doyen is an Associate at an international law firm in Paris, where he works for national and international clients, notably in merger control, antitrust, and regulation law. He is also an Assistant Professor in European Law and has expertise in the telecoms sector.
Doyen, J.; “Merger Incompatibility requires more than Dominance (Cases T-58/20, T-64/20 and T-69/20)”, EU Law Live, 02/12/2024, https://eulawlive. com/op-ed-merger-incompatibility-requires-more-than-dominance-cases-t-58-20-t-64-20-and-t-69-20/
White Tablecloths for Pilots vs Fast Food for Stewardesses: Sex Discrimination and the Limits of Equal Pay in EU law
(C-314/23, Air Nostrum and Others)
Raphaële
Xenidis
Does EU gender equality law permit that airline pilots eat on white tablecloths while air stewardesses eat at fast food when travelling for work? This is essentially the question referred by the Spanish National High Court to the Court of Justice (hereinafter ‘the Court’) in C-314/23.
The question arose because until recently Air Nostrum – an airline operating flights under the name Iberia Regional – awarded lower daily subsistence allowances (essentially meal vouchers) to its cabin crew members than to its pilots. In this sector, the labour market is still strongly segregated along gender lines: cabin crew members are predominantly women and pilots mostly men, making the problem one of potential (indirect) sex discrimination.
The case raised several interesting questions. The first relates to the boundaries of the notion of pay: are daily subsistence allowances to be understood as part of working conditions or a form of pay? While the Court of Justice has traditionally interpreted the notion of ‘pay’ broadly to enhance the effectiveness of the ban on sex discrimination, the condition for claiming equal pay is stricter than for equal treatment as workers need to perform equal work or work of equal value.
The second question relates to the balancing of gender equality with the autonomy of social partners in negotiating collective agreements. The pilots’ trade union and the representatives of cabin crew members each concluded a separate collective agreement with Air Nostrum. Those collective agreements exhibit different compensation rates for meals taken while travelling, signalling that trade unions have prioritised different demands. Could the autonomy of different social partners justify indirect sex discrimination?
The Facts of the Case and the Preliminary Question Referred
All flying staff, pilots and cabin crew alike, receive a daily subsistence allowance that compensates them for their subsistence costs other than accommodation and transport (mainly meals) when they travel during work. It is a flat rate that varies depending on whether travels are national or international. Cabin crew members receive between 37,06 EUR and 59,06 EUR and pilots between 65 EUR and 100 EUR. By definition, the subsistence allowance does not remunerate any specific task performed and therefore does not vary depending on workers’ levels of experience or responsibility.
As put forward in the summary of the request for a preliminary ruling (para. 10),
‘The amounts which Air Nostrum pays both to cabin crew and to pilots are not regarded as salary, either from the perspective of Spanish employment legislation […] or from the point of view of EU law (Article157 TFEU and Article 2(1)(e) of Directive 2006/54/EC). That is because those amounts are not paid for specific work calculated by unit of time or unit of work, which implies that the different value of the work done by pilots and by cabin crew cannot be a factor that justifies such different treatment.’
Therefore, the referring court framed the case in terms of sex discrimination in working conditions as opposed to pay. Recalling that 94% of cabin crew members are women and that 93,71% of pilots are men, the Spanish National High Court asks the Court of Justice whether such difference in the working conditions of both groups of workers amounts to indirect sex discrimination under Article 14(1)(c) of Directive 2006/54/EC. That provision prohibits sex discrimination in ‘employment and working conditions, including dismissals, as well as pay’.
As recognised by Advocate General Szpunar (point 41), the collective agreements are formally neutral and allowances are paid to both men and women without distinction so there is no direct sex discrimination. However, given the gender make-up of each professional group, the ban on indirect discrimination in Article 2(1)(b) of Directive 2006/54/EC ‘where an apparently neutral provision, criterion or practice [puts] persons of one sex at a particular disadvantage compared with persons of the other sex’ would apply ‘unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary’. The allowance, though allocated on grounds other than sex, seems to create ‘a particular disadvantage’ for women compared to men working at Air Nostrum.
The Response of the Court of Justice
The approaches of AG Szpunar and of the Court differ significantly. The Advocate General took for granted the referring court’s understanding of the daily subsistence allowance as part of working conditions. His analysis focused on issues of comparability and justification and led to a finding of indirect sex discrimination in relation to flight attendants’ working conditions (point 99).
By contrast, the Court reformulated the question referred and focused instead on one central premiss of the referring court’s question: Is the daily subsistence allowance part of workers’ working conditions or should it be understood as part of their pay? The answer to this question is a pre-condition for the other questions examined by the Advocate General such as: Is the situation of men pilots and women flight attendants comparable? Is there prima facie indirect discrimination in the form of a particular disadvantage for women? Can it be objectively justified by a legitimate aim, for instance the autonomy of different trade unions in negotiating their own collective agreement?
1. For the Court, the Daily Subsistence Allowance is part of Workers’ Pay
The Court of Justice disagreed with the assumption of the Spanish court. For the Luxembourg judges, the allowance is not to be understood as an element of employees’ working conditions under Article 14(1)(c) of
Directive 2006/54/EC, but as an element of their pay under Article 4 of Directive 2006/54/EC and Article 157 TFEU. This qualification is crucial because the provisions on equal pay entail the application of a lex specialis: equal pay between men and women is only guaranteed when workers perform ‘equal work’ or ‘work of equal value’. By contrast, the prohibition of sex discrimination in working conditions does not depend on the comparability of the work performed. Hence, the comparability of cabin crew members (mostly women) and pilots (overwhelmingly men), which is necessary for any finding of discrimination, hinges on whether the allowance is a form of pay or part of working conditions. The grasp of the principle of gender equality is therefore at stake in this question of qualification. Should the subsistence allowance be regarded as pay, (women) flight attendants need to prove that they perform work of equal value to have a claim of sex discrimination. By contrast, should the allowance be regarded as part of employees’ working conditions, they can compare themselves to (men) pilots and establish the existence of prima facie indirect sex discrimination.
The Court recalls its historically broad interpretation of the notion of pay, which is an autonomous concept under EU law. Invoking the definition in Article 2(1)(e) of the Recast Directive 2006/54/EC, the Court indicates that pay covers ‘not only the wage or salary, but also “any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his/her employment from his/her employer”’ (para. 29). Article 4 of the Directive includes ‘all aspects and conditions of remuneration’ in the notion of pay. According to the Court, pay does not have to remunerate specific work but merely be received ‘in respect of [the worker’s] employment’ (para. 32). Even though the allowances at stake ‘are not paid in return for work done’, the Court regards them as ‘consideration granted by the employer to the workers […] in respect of their employment’ falling within the scope of ‘pay’ under Article 4 of Directive 2006/54/EC and not ‘working conditions’ under Article 14(1)(c).
This loose interpretation of the phrase ‘in respect of […] employment’ is in line with previous interpretations of pay as encompassing all sorts of bonuses and benefits in kind or cash ‘whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer, and irrespective of whether the worker receives it under a contract of employment, by virtue of legislative provisions or on a voluntary basis’ (Bötel, C-360/90, para 12). Pay includes e.g. special transport facilities for workers and their families continuing after retirement (Garland, C-12/81), payment for attending training courses (Bötel, C-360/90) or, in Danfoss (C109/88)individual pay supplements calculated, inter alia, on the basis of mobility. For example, as early as 1972, the Court found that an expatriation allowance the purpose of which was to ‘compensate for the special expenses and disadvantages resulting from entry into the service of the Communities for those officials who [are] obliged to change their place of residence’ created sex discrimination contrary to (then) Article 119 EEC on equal pay (Bertoni v Parliament, C-20/71, paras. 3, 8, 12). Hence, to be considered as pay, the consideration does not have to be granted for actual work performed and it can take several forms such as flat rate payments.
However, the situation in Air Nostrum can be distinguished from those decisions. In cases like Danfoss or Bötel, the link between the pay supplements and work – captured by the notion of ‘pay’ – was much clearer. As stated by the Court in Danfoss, the ‘criterion of mobility [could be] employed to reward the quality of work done by the employee or […] used to reward the employee’s adaptability to variable hours and varying places of work’ for
example (Danfoss, C-109/88, para. 19). In Bötel, pay was linked to attending training ‘to be able effectively to look after the interests of employees for the sake of good working relations and for the general good of the undertaking’ (para. 24). In Air Nostrum and Others, the allowance consisted of a flat rate aiming solely to compensate workers for their travels independently of any intention to reward e.g. the work’s ‘quality’ or the workers’ ‘adaptability’ or engagement for the ‘general good’ of the company. The allowance can also be distinguished from the transport facilities in Garland, which form an incentive aiming to attract workers to the company. Hence, the Court’s qualification of the allowance at stake as a form of pay is disputable.
2. Cabin Crew Members and Pilots do not Perform Equal Work or Work of Equal Value
Counter-intuitively, in Air Nostrum, the Court’s stretched interpretation of the terms ‘in respect of employment’ led to placing the situation out of reach for the principle of gender equality. Here, the qualification of the allowance as ‘pay’ introduces a stricter comparability requirement: for the obligation of equal pay between men and women to apply, the work performed has to be ‘equal’ or ‘of equal value’. The latter is to be determined in light of ‘objective criteria, including educational, professional and training requirements, skills, effort, responsibility and working conditions, irrespective of differences in working patterns’ (as recently codified by the Pay Transparency Directive 2023/970, Recital 26).
Cabin crew members – who attend to, and ensure the safety of, passengers – and pilots – who fly the aircrafts –are regarded as performing distinct work valued differently in terms of remuneration. For the Court, this bars any comparability of those two groups of professionals for the purpose of equal pay in light of the above-mentioned criteria (para. 42). Therefore, although the Court acknowledges the existence of an ‘indirect difference in treatment’, it considers that that difference cannot be regarded as indirect sex discrimination in the absence of comparable work (para. 43). In other terms, for the Court, the fact that cabin crew members and pilots do not perform work of equal value justifies them receiving different levels of daily subsistence allowance. No explanation is offered as to why those specific comparison criteria are relevant here. The Court does not refer its most important decisions on indirect sex discrimination in pay either (e.g. Jenkins, C-96/80, Bilka-Kaufhaus, C-170/84, but also recently C-184/22 et C-185/22 KfH Kuratorium für Dialyse und Nierentransplantation).
3. A Few Remarks on the Comparison Test
In Air Nostrum, the Court seems to confuse notions of equal pay and indirect sex discrimination. On the one hand, the Court has not always been clear regarding which test applies to work-related benefits and the application of the specific comparison test linked to equal pay contrasts with previous case law. In the early Bertoni v Parliament decision, for example, the Court did not enter into any detailed discussion of the qualification of an expatriation allowance as pay, or of the performance of equal work by EU officials. It merely found ‘an arbitrary difference of treatment between [men and women] officials’. Even when the Court did recognise a given benefit as falling within the notion of pay, it has not always conditioned the acknowledgment of indirect sex discrimination to the performance of equal work or work of equal value. For instance, in Bötel, it concluded that the differential treatment of part-time workers with regard to pay for attending training courses could amount to indirect sex
discrimination without first testing whether the applicant performed equal work or work of equal value. When the Court has had to assess the indirectly discriminatory nature of national legislation (or equivalent), it has also considered entire categories of workers – part-time vs full-time – without raising the preliminary question of equal work or work of equal value although pay was at stake. For example, in C-171/88 Rinner-Kühn or C-33/89 Kowalska, which respectively concerned the exclusion of part-time workers from illness-related payments and severance grants, the Court found that the comparative disadvantage experienced by part-time workers could amount to indirect sex discrimination.
On the other hand, the decision in Air Nostrum ignores the well-established rule that ‘the assessment of […] comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned’ (emphasis added, see e.g. C-147/08 Römer, para. 42). For AG Szpunar, ‘the comparative disadvantage must be identified not in the abstract but only in relation to the provision, criterion or practice concerned giving rise to that particular disadvantage’, meaning that ‘the general aim of the measure in question must be taken into account’ (point 59). Since the purpose of the allowance in Air Nostrum is to cover ‘daily meals away from the usual place of residence’, he argues, cabin crew members can be compared with pilots and the comparison test effectively reveals the existence of a comparative disadvantage for the first group. By contrast, the Court’s interpretation in Air Nostrum seems overly formalistic and risks reducing significantly the impact of the notion of indirect discrimination whenever financial aspects of working conditions or elements of remuneration are at stake.
4. The Court Concludes to an Absence of Sex Discrimination
For the Court, no sex discrimination exists in the absence of equal work or work of equal value so there is no need to examine potential justifications. Therefore, the question of the balance between social partners’ autonomy in negotiating collective agreements and the principle of gender equality is not examined. In this regard, the Court had indicated early on that the origin of unequal pay in separate collective agreements negotiated by the same trade unions could not justify sex discrimination (Enderby, C-127/92, para. 22). Indeed, ‘[i]f the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could […] easily circumvent the principle of equal pay by using separate bargaining processes’. Air Nostrum is a missed opportunity to transpose that reasoning to a situation where sex discrimination arises from separate collective agreements negotiated by different trade unions.
Conclusions
Paradoxically in Air Nostrum, the Court’s broad interpretation of the notion of pay, which historically allowed many gender equality battles to be won, disarmed the prohibition of sex discrimination by preventing its application altogether. According to the Court, there is no (indirect) sex-based discrimination where, for the exact same travel, a woman cabin crew member receives a daily subsistence allowance between 43% and 41% lower than that of a man pilot.
That reasoning could be challenged on at least two levels: the qualification of the daily subsistence allowance as pay, and the application of a comparison test focused on the existence of equal work or work of equal value as
opposed to a comparative disadvantage that could amount to indirect sex discrimination. All in all, the decision in Air Nostrum undermines the effectiveness of the notion of indirect sex discrimination.
At least three lessons can be drawn from this decision. First, comparing the Court’s decision in Air Nostrum and the AG Opinion shows the artificiality of the distinction between pay and working conditions and, at the same time, its significant consequences in terms of access to equality rights. Unequal treatment in working conditions and equal pay questions are sometimes difficult to disentangle. Yet, the impact of the qualification on the comparability test, and thus on the scope of the right to gender equality, is critical.
Second, the comparability requirement – in its different manifestations in equal pay or equal treatment – proves problematic when enforcing an assimilationist logic. The privileged group often being men (considering e.g. the gender pay gap), women need to prove sameness with, or conform to, male norms in order to claim equal rights (e.g. the same pay level). In the words of MacKinnon, ‘[u]nder the sameness standard, women are measured according to [their] correspondence with man’ so that ‘[g]ender neutrality is […] simply the male standard’ (C. MacKinnon, Feminism Unmodified, 1987, 34).
This leads to a third remark: structural gender inequality – for instance vertical and horizontal gender segregation on the labour market – threatens women’s ability to successfully bring sex discrimination claims for lack of comparability. Air Nostrum is a case in point: gender stereotyping and related deep-rooted discriminatory mechanisms influencing career choices cause certain sectors to be overly feminine or masculine (e.g. stewardesses vs pilots) with correlated differences in terms of pay. The decision in Air Nostrum exposes the limits of EU gender equality law, and in particular the principle of equal pay which does not effectively reach into the root causes of gendered pay differences and disadvantages.
Raphaële Xenidis is assistant professor in European Law at Sciences Po Law School, Honorary Fellow at The University of Edinburgh School of Law and Global Research Fellow at iCourts, University of Copenhagen. Her current research focuses on European discrimination and equality law. The author is very grateful to Susanne Burri for her comments on a previous version of this piece.
Xenidis, R.; “White Tablecloths for Pilots vs Fast Food for Stewardesses: Sex Discrimination and the Limits of Equal Pay in EU law (C-314/23, Air Nostrum and Others)”, EU Law Live, 04/12/2024, https://eulawlive.com/op-ed-white-tablecloths-for-pilots-vs-fast-food-for-stewardesses-sex-discriminationand-the-limits-of-equal-pay-in-eu-law-c-314-23-air-nostrum-and-others/
Membership in a
Political Party or Movement contributes
to the
Effectiveness of the Political Rights granted to EU Citizens by Article 22 TFEU – Commission v Czech Republic (C-808/21) and Commission v Poland (C-814/21)
Margherita Branca
Introduction
On 19th November 2024, the Grand Chamber of the Court of Justice (hereinafter ‘the Court’) delivered two judgments in cases Commission v Czech Republic (C-808/21) and Commission v Poland (C-814/21), two infringement proceedings concerning EU citizens’ political rights.
The judgments marked the end of the Commission’s decade-long effort to challenge the compatibility with Article 22 TFEU of Czech and Polish national laws reserving the right to become members of political parties or movements to their own nationals.
Article 22 TFEU, introduced by the Treaty of Maastricht alongside Union citizenship, confers to all EU citizens residing in a Member State of which they are not nationals (hereinafter ‘mobile EU citizens’) the right to vote and stand as candidates in European and municipal elections. By contrast, mobile EU citizens do not enjoy the same rights in relation to national elections: their participation in the political life of their State of residence is thus limited.
Given the similarities between the contested national legislations, the judgments overlap extensively, and the two defendants have intervened in each other’s cases to support their respective positions.
Decision of the Court
In line with the Advocate General’s Opinions in these cases, the Court sided with the Commission and ruled that national laws granting the right to become members of political parties only to their nationals are contrary to Article 22 TFEU. Such provisions hinder mobile EU citizens’ ability to stand as candidates in European and municipal elections, placing them at a disadvantage compared to nationals of the State of residence.
Essentially, mobile EU citizens can stand on lists presented by political parties only as independent candidates. However, non-members of the party are excluded from participating in the decision on their inclusion on said lists. They can also stand as candidates on lists presented or supported by other entities (e.g. voter groups). Nonetheless, this possibility risks exacerbating the polarisation in candidate lists and political discourse between national and non-national candidates, undermining the very purpose of Article 22 TFEU.
The judgments offer some interesting insights concerning the scope of Article 22 TFEU and the interpretation of the national identity clause.
The Scope of Article 22 TFEU
A notable feature of these judgments is the Court’s determination of the scope of Article 22 TFEU, considering not only its content, but also its close ties with Union citizenship, the principle of representative democracy, and freedom of association.
The provision does not explicitly refer to the conditions for becoming a member of a political party, which remain a matter pertaining to the competence of Member States. Nonetheless, such competence must be exercised in compliance with EU law.
This extensive interpretation of the scope of Article 22 TFEU stems from its close connection to Union citizenship, which the Court has consistently stated to be destined to be the ‘fundamental status of nationals of the Member States’ since its landmark ruling in Grzelczyk (C-184/99). There is a clear functional connection between the political and the free movement rights granted to EU citizens. Notably, Article 20(2)(b) TFEU grants mobile EU citizens political rights in European and municipal elections ‘under the same conditions’ as nationals of the State of residence. Preventing mobile EU citizens from becoming members of a political party negatively impacts their chances of being elected because they cannot benefit from the party’s resources and visibility.
The right to join a political party is also an expression of freedom of association (Article 12(1) Charter), which, following the case-law of the ECtHR (Gorzelick et al. v Poland), is essential to the functioning of a democratic society. Political parties also fulfill an indispensable role in the system of representative democracy on which the EU is founded (Articles 2 and 10(1) TEU).
In light of this, the Court concludes that membership in political parties contributes to the effectiveness of the right to stand for elections granted by Article 22 TFEU, which aims to ensure participation in the democratic process and foster the integration of mobile EU citizens into the society of the State of residence.
National Identity Clause
The Court recognised the role of political parties in shaping national political life, which is considered part of a State’s national identity, within the meaning of Article 4(2) TEU. The defendants had argued that the central role of political parties in national elections – in which mobile EU citizens do not enjoy equal political rights to nationals – justified limiting non-nationals’ participation in what the defendants consider the privileged forum for the discussion and determination of national politics.
To reconcile the extensive scope of Article 22 TFEU with Article 4(2) TEU, the Court looks to other Treaty provisions. Specifically, Article 4(2) TEU must be interpreted in light of Articles 2 and 10 TEU. As such, the Court concludes that the national identity clause cannot be interpreted in a way that would allow Member States to disregard the principle of democracy.
Conclusions
The decisions add another piece to the constellation of judgments on the scope of Article 22 TFEU (C-300/04, Eman and Sevinger; C-650/13 Delvigne; C-673/20, EP). In these decisions, the Court gives a clear principle and value-oriented interpretation of the provision to secure its effectiveness.
Margherita Branca is an Academic Assistant at the Department of European Legal Studies of the College of Europe in Bruges
Branca, M.; “Membership in a Political Party or Movement contributes to the Effectiveness of the Political Rights granted to EU Citizens by Article 22 TFEU – Commission v Czech Republic (C-808/21) and Commission v Poland (C-814/21)”, EU Law Live, 03/12/2024, https://eulawlive.com/analysismembership-in-a-political-party-or-movement-contributes-to-the-effectiveness-of-the-political-rights-granted-to-eu-citizens-by-article-22-tfeucommission-v-czech-republic/
Generic Drugs and the Limits of Reliance: when is the Original not enough? (T-223/20)
Ayana Dootalieva
In Orion ( T-223/20), the General Court clarified under which circumstances an authorisation for a generic medicinal product can rely on a prior reference medicinal product. This question was preceded by a long history of (attempted) authorisation applications to market ‘dexmedetomidine hydrochloride’, a sedative intended to be used in intensive care. It all started when, at the end of the previous century, the pharmaceutical company Orion developed the sedative ‘dexmedetomidine hydrochloride’ and granted Abbott an exclusive licence to manufacture and market the product. Abbott wished to make use of the centralised procedure before the European Commission and submitted to the European Medicines Agency (‘EMA’) an application for a marketing authorisation for dexmedetomidine hydrochloride (better known as ‘Precedex’). Abbott also submitted clinical studies to demonstrate the safety and efficacy of Precedex. The EMA’s Committee for Medicinal Products for Human Use (‘the CHMP’) was concerned about the quality of these studies, after which Abbott withdrew its application without waiting for a refusal.
Abbott then requested and obtained a marketing authorisation in the Czech Republic which at the time was not yet a member of the EU. The data submitted in support of the Czech authorisation was the same as that submitted to (and doubted by) the European Medicines Agency. In other words, the studies upon which the Czech authorisation relied were inadequate to assess the safety and efficiency of the product. Eventually, Orion requested the withdrawal of the Czech marketing authorisation for Precedex.
Orion later submitted through the centralised procedure an application for ‘Dexdor’, which has dexmedetomidine hydrochloride as its active substance, and obtained a marketing authorisation from the European Commission. The application dossier included new studies as a response to the serious concerns expressed by the European Medicines Agency when assessing Precedex.
Accord Healthcare (the intervener in this case) submitted to the European Medicines Agency an application for a marketing authorisation for ‘Dexmedetomidine Accord’, the generic version of Dexdor/ Precedex. The application for the generic product relied on studies for Dexdor and referred to Precedex only in respect of the concept of global marketing authorisation and the starting point for the RDP period (a standard period of six years) (paras. 39-40). The Commission granted Accord Healthcare the required authorisation.
Orion (the applicant in this case) then brought an action under Article 263 TFEU to annul the European Commission’s decision to grant Accord Healthcare (the intervener in this case) a marketing authorisation for the generic product.
In this case, the General Court analysed whether the Commission rightfully examined the eligibility of Precedex as a reference medicinal product within the meaning of Articles 10(1) and (2)(a) of Directive 2001/83 (para. 56). The applicant, Orion, argued that Precedex was ineligible to be used as a reference product whereas the Commission argued it lacked the competence to examine the eligibility of Precedex as a reference product (paras. 65, 66).
Directive 2001/83/EC on the Community code relating to medicinal products for human use codifies several directives on medicinal products and aims to safeguard public health while not hindering the working of the pharmaceutical industry. Obtaining an authorisation to place a medicinal product on the market requires the applicant to submit studies and clinical trials, unless they can demonstrate that (i) the product is essentially similar to a medicinal product authorised in a Member State and that the holder of the marketing authorisation for the original medicinal product has consented to the original studies being used for the assessment of the current application, or (ii) the constituent or constituents of the medicinal product have a well-established medicinal use, or (iii) the medicinal product is essentially similar to a product authorised in the EU for no less than six years and is marketed in the Member State for which the application is made (Article 10(1)).
The General Court first analysed the Commission’s competence to examine the eligibility of Precedex as a reference medicinal product and its obligation in that regard.
The abridged procedure for granting an authorisation for a generic medicinal product on the basis of a reference medicinal product exempts the applicant from the obligation to submit tests and clinical trials (Article 10 of Directive 2001/83). The abridged procedure is however only available if the safety and efficacy of the reference medicinal product is established and the studies and trials are available to the authority assessing the application for the generic product (Scotia Pharmaceuticals, C-440/93, para. 17; AstraZeneca, C-223/01, para. 27; Olainfarm, C-104/13, paras. 25, 28 and 29). The General Court clarified that a medicinal product can only be used as a reference product if it complies with the safety requirements laid down in Directive 2001/83. The authority assessing an application for a generic product is allowed, but not obligated, to recognise the authorisation for the reference product which was granted by another authority (para. 75).
The General Court however recalled the third subparagraph of Article 10(1) of Directive 2001/83, which allows the Commission (as the authority assessing an application for a generic product) to request the authorisation granted to the reference product and all relevant documentation. The Commission can also request the tests and trials submitted in the application dossier for the reference product, in addition to the assessment of those results carried out by the competent authority (para. 79), in this case, the Czech authority. The principle of sound administration, enshrined in Article 41(1) of the Charter of Fundamental Rights of the European Union, even requires the Commission to examine carefully and impartially all relevant aspects of the individual case (Applied Microengineering v Commission, T-387/09, para. 76, ATC and Others v Commission, T-333/10, para. 84).
The General Court concluded that the Commission was competent to examine the eligibility of Precedex as a reference medicinal product as there is a legal basis for the Commission to request the original dossier. The Commission was even required to do so as there was evidence that the studies and trials related to the reference product were of dubious quality (para. 82).
The General Court then looked into the evidence calling into question the eligibility of Precedex as a reference medicinal product. Orion argued that Precedex was not eligible as a reference medicinal product since the Czech marketing authorisation for Precedex did not comply with EU law, in particular Article 8(3) of Directive 2001/83 and Article 12(2) of Regulation No 726/2004. More specifically, Orion argued that the dossier on which the Czech authorisation for Precedex was based contained the same clinical studies as those submitted by Abbott to the EMA (and which were called into question) and that no new studies were submitted to the Czech permitgranting body when the Czech Republic joined the EU. Orion had also made that claim to the Commission before the contested decision was adopted (para. 96).
An authorisation application must include the results of pharmaceutical and pre-clinical tests and of clinical trials which must enable a sufficiently well-founded and scientifically valid opinion to be formed on the benefit/ risk balance of the medicinal product. Otherwise the application for a marketing authorisation must be rejected (Article 8(3) of Directive 2001/83, Smith & Nephew and Primecrown, C-201/94, para. 30).
Then, the General Court delved into the merits of the studies and trials included in the application file for the reference product. The General Court noted concerns about the adequacy of these clinical studies as they did not suffice to demonstrate the benefit/risk balance of Precedex (para. 103). At the time, the EMA took the view that it was appropriate to adopt a negative opinion and to recommend that the Commission reject Abbott’s application. Abbott subsequently withdrew its application without awaiting a refusal (para. 104). In this case, according to the Commission’s recommendations, the dossier should have been supplemented with new preclinical tests and clinical trials before a new application could have been submitted (para. 106). According to prior case-law, a medicinal product, for which the marketing authorisation has been withdrawn for such a reason, cannot be regarded as a reference medicinal product (AstraZeneca, C-223/01, para. 45).
The General Court stated that even though there was data demonstrating the efficacy and safety of Dexdor, there is no such data for Precedex (para. 113). The General Court concluded that the Commission had evidence which called into question the eligibility of Precedex as a reference medicinal product. As a result, the Court annulled the authorisation for the generic product (para. 119).
Ayana Dootalieva practises environmental law at the Brussels Bar.
Dootalieva, A.; “Generic Drugs and the Limits of Reliance: when is the Original not enough? (T-223/20)”, EU Law Live, 05/12/2024, https://eulawlive. com/analysis-generic-drugs-and-the-limits-of-reliance-when-is-the-original-not-enough-t%e2%80%91223-20/
Renewed Hopes for the European Commission in Enforcing General and Structural Violations of the Habitats Directive?
(Case C-47/23, European Commission v Federal Republic of Germany)
Francesco Maletto
Introduction
On 14 November 2024, the Court of Justice delivered its judgment in European Commission v Federal Republic of Germany (C-47/23), in connection with an infringement procedure regarding Germany’s failure to comply with its obligations under Articles 6(2) and 4(1) of Directive 92/43/EEC (the Habitats Directive).
This ruling forms part of a series of decisions in which the Court has had the occasion to rule on infringement actions brought by the European Commission on general and structural violations of the Habitats Directive. Unlike its immediate predecessors against Ireland (C-444/21) and Germany (C-116/22), however, this time the Commission was able to meet the standard of evidence required by the Court to prove repeated and persistent infringements of the Directive.
The judgment also contains interesting elements around the interpretation of Article 6(2) of the Habitats Directive, with the Court further elaborating on the content of the ‘appropriate steps’ to avoid the deterioration of natural habitats in Special Areas of Conservation.
General Overview of the Findings of the Court
Upon a complaint initially brought by NABU, the Commission’s action was based on the reports filed by Germany under Article 17 of the Habitats Directive, which showed a deterioration of habitat types 6510 (lowland hay meadows) and 6520 (mountain hay meadows).
On this basis, following the pre-litigation procedure, the Commission alleged that Germany had infringed Article 6(2) of the Habitats Directive by systematically failing to take ‘appropriate steps’ to avoid the deterioration of habitats 6510 and 6520 in the sites designated for them. The Commission based this allegation on three aspects: the loss of area covered by the habitat types in the relevant sites, the lack of sufficient surveillance of those sites and the lack of legally binding measures against the over-fertilisation and early mowing of those sites.
In addition, the Commission argued that Germany had infringed Article 4(1) of the Habitats Directive by systematically failing to update the Standard Data Forms (SDFs) for the habitat types included in Implementing Decision 2011/484
Through its judgment, the Court accepted the Commission’s claim on the general and structural violation by Germany of Article 6(2) of the Habitats Directive. At the same time, the Court rejected the arguments around the violation of Article 4(1) of the Directive, in relation to the obligation to periodically update the data contained in the SDFs. For reasons of space, this latter part of the decision will not be analysed, although it likewise contains interesting elements for reflection.
On the General and Structural Issues brought before the Court
The judgment is relevant as it breaks a trend which saw the Commission failing to meet the standard of evidence required to prove general and structural infringements of the Habitats Directive.
In the present case, in fact, with the Advocate General reiterating in his Opinion the requirements for the Commission to establish that particular situations are representative of a general and persistent practice, the Court considered that the Commission had, through ‘concrete evidence’, successfully met the relevant standard. In particular, the Commission had submitted a comparative analysis (based on SDFs and management plans) revealing (since 2006) a significant loss of area in 596 out of 2027 sites hosting habitat type 6510 and in 88 out of 295 sites hosting habitat type 6520.
In such a scenario, as explained by the Court, where the Commission has adduced sufficient evidence, it is then incumbent on the Member State to challenge ‘in substance and in detail’ the information produced.
In the present case, the Court, also supported by the Advocate General, ruled in favour of the Commission, arguing that, on the one hand, the evidence brought was sufficient to infer a general and structural issue and, on the other, that the arguments provided by Germany were not capable of ruling out the Commission’s allegations.
Even if, in the case at stake, the relevant data (relating to losses of surface areas) was arguably less difficult to collect compared to the previous infringements, this judgment is welcome as it might in any case constitute an incentive for the Commission to continue bringing ambitious cases before the Court, especially in relation to systemic violations of EU nature legislation.
A further point that should be remarked upon is the further recognition of the possibility for the Commission, when bringing action on general matters, to provide additional evidence at the stage of proceedings before the Court. In the view of the Court (following previous case-law in C-494/01 and C-664/18), this further illustrates the general and structural failure without altering the subject matter of the dispute.
Remarks about Article 6(2) of the Habitats Directive
On Article 6(2) of the Habitats Directive, the judgment constitutes a useful summary of the Court’s case-law around the obligations stemming from this provision, which, as emphasised by the Court, is site-specific, with the deterioration in a given site not being able to be offset by improvements in other sites.
A few points of the ruling are also worth mentioning around Article 6(2).
First, according to the Court, to establish the existence of a general and structural violation of Article 6(2), the Commission, in addition to meeting the required standard of evidence, had to prove the ‘probability’ that the deterioration of the habitats was caused by the failure of Germany to take appropriate steps. In this regard, again, the arguments brought by Germany (especially about surveillance and existing measures) were not sufficient to rebut the lines of reasoning of the Commission.
Second, the Court recognised that Article 6(2), while providing for a general obligation to take appropriate protective measures, does not specify the actual measures required of Member States to comply with the provision, leaving them a margin of discretion. Nonetheless, it found that, having established that over-fertilisation and early mowing result in the deterioration of habitats 6510 and 6520, the lack of binding measures prohibiting such activities is unable to satisfy the requirements of Article 6(2) of the Habitats Directive.
Third, the Court remarked upon the importance of surveillance and, consequently, habitats mapping, underlining how specific mapping of habitats and appropriate cartographic cycles are critical for surveillance and monitoring measures to be considered ‘appropriate’ within the meaning of Article 6(2) of the Habitats Directive.
Francesco Maletto is an Italian-qualified lawyer specialised in Protected Wildlife and Habitats at ClientEarth. He holds a Ph.D. from Maastricht University.
Maletto, F.; “Renewed Hopes for the European Commission in Enforcing General and Structural Violations of the Habitats Directive? (Case C-47/23, European Commission v Federal Republic of Germany)”, EU Law Live, 05/12/2024, https://eulawlive.com/analysis-renewed-hopes-for-the-europeancommission-in-enforcing-general-and-structural-violations-of-the-habitats-directive-case-c-47-23-european-commission-v-federal-republic-ofgermany/
Breaking Bonds: EU
General Court confirms Cartel Findings and Fines in SSA Bond Market Case (T-386/21 and T-406/21)
Camila Sánchez
On 6 November 2024, the General Court delivered its judgment in joined cases Crédit agricole and Crédit agricole, Corporate and Investment Bank v Commission ( T-386/21) and UBS Group and Credit Suisse Securities (Europe) v Commission ( T-406/21), concerning the European Commission’s decision fining Crédit Agricole and Credit Suisse for participating in a cartel in the US dollar-denominated supra-sovereign, sovereign and agency bond (SSA bonds) sector. In essence, the General Court upheld the €3,993,000 in fines imposed by the Commission on Crédit Agricole, as well as the €11,859,000 in fines imposed on Crédit Suisse by virtue of its decision of April 28, 2021.
Background
The facts date back to 2018, with an application under the Commission’s 2006 Leniency Notice submitted by Deutsche Bank. The European Commission fined Bank of America, Merrill Lynch, Crédit Agricole and Crédit Suisse a total of €28,494,000. According to the Commission, a group of traders of these four banks took part in a cartel in the secondary trading market of SSA bonds denominated in US Dollars within the European Economic Area (EEA).
Bonds are first issued in the primary market, where they are sold to investors through mechanisms like auctions or syndicates. They are subsequently traded among banks, brokers, and investors in the secondary market. Bonds are categorised based on the issuer’s identity and the currency of issuance, and banks’ trading desks are structured accordingly. The specific category of SSA bonds encompasses three types: (i) supra-sovereign bonds issued by supranational institutions (e.g., the European Investment Bank); (ii) sovereign bonds issued by central governments under foreign legal frameworks or in foreign currencies (e.g., US dollar-denominated bonds by European governments); and (iii) agency bonds, issued by sub-sovereign government-related entities like regional development banks.
In the case at hand, the traders maintained regular contact via private and multilateral chatrooms, leveraging personal relationships to create a closed circle of trust. Within these networks, they exchanged sensitive commercial information, coordinated pricing strategies, and aligned trading activities to manipulate the market, undermining competition. Their collusive practices spanned five years and impacted the trading of these bonds across the entire EEA. The European Commission’s investigation revealed that the traders engaged in actions such as refraining from competing on bids or offers, splitting trades, and adjusting their positions to meet specific customer demands without transparency. These behaviours restricted customer choice and distorted market dynamics. Such practices
are clear violations of EU competition law, including Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement, which prohibit collusion and anticompetitive coordination.
The General Court Decision
Crédit Agricole and Credit Suisse each lodged an action for annulment of the Commission decision, contesting their participation in the cartel. Their pleas focused on three primary arguments. First, they disputed the Commission’s characterisation of their conduct as a ‘single and continuous infringement’, questioning both the unity of the alleged infringement and the extent of their involvement. Second, they argued against the classification of this infringement as a ‘restriction by object’, contending that the Commission failed to demonstrate that their actions inherently restricted competition. Last, they challenged the methodology and calculations used to determine the fines imposed, asserting that the penalties were disproportionate and not reflective of their actual participation. Additionally, Crédit Agricole raised concerns about procedural fairness, alleging a breach of the presumption of innocence, particularly regarding the Commission’s assumption of their traders’ awareness of the information exchanged in discussion forums.
1. Single and Continuous Infringement
The Court upheld the European Commission’s finding of a single and continuous infringement, emphasising that it aligned with the criterion of an ‘overall plan’ pursuing a single anticompetitive objective. The traders’ exchanges involved agreements on pricing and the division of trading obligations, enabling participants to gain detailed, realtime insights into competitors’ strategies and coordinate trading activities to maximise revenues and minimise losses. The Court emphasised the continuity of the infringement, noting that the collusion persisted even after Deutsche Bank’s prohibition of multilateral forums in 2013, as traders shifted to bilateral exchanges. The Court rejected Crédit Agricole’s claim that interruptions in its participation disrupted the continuity of the cartel, affirming that liability is assessed based on intentional contributions to the collusive scheme and knowledge of or reasonable foreseeability of other participants’ conduct. Additionally, it attributed knowledge gained by Crédit Agricole’s trader from prior employment to the employer, reinforcing the principle that liability extends to entities benefitting from such knowledge. The Court also confirmed that evidence predating or following the formal infringement period could be used to substantiate and contextualise the existence of the cartel.
2. Restriction of Competition by Object
The Court confirmed the Commission’s finding that the conduct constituted a ‘restriction by object’, thereby negating the need to prove its actual effects on competition. It stressed that the exchanges of sensitive commercial information—such as current and future pricing, trading positions, and strategies —had an inherent anticompetitive nature and potential to distort market dynamics. This assessment was made based on the objective characteristics of the conduct, irrespective of the individual roles of the participants or the specific situations of the undertakings involved.
The ruling underscored the principle that the classification of a cartel as a restriction by object applies collectively to all participants, even if an individual participant’s involvement was limited.
3. Calculation of Fines and Methodology
Regarding the fines imposed, the Court endorsed the Commission’s methodology, which deviated from the standard approach of using turnover as the basis. Instead, the Commission employed a proxy based on the notional amounts of SSA bonds traded during the infringement period, adjusted by a factor reflecting the spreads between purchase and sale prices. The Court affirmed the Commission’s discretion to depart from its 2006 Guidelines, provided it adheres to their principles and fully justifies the approach, emphasising that the Commission’s methodology relied on the best available data. The Court found this method appropriate, considering the specificities of the SSA bond market and the need to accurately reflect the economic significance of the infringement.
4. Duration of Participation and Fine Adjustment
While the Court dismissed Credit Suisse’s action in its entirety, it partially annulled the decision concerning Crédit Agricole. It determined that Crédit Agricole’s participation in the infringement was established only from January 11, 2013, to March 24, 2015, rather than from January 10, 2013, as the Commission had found. However, this minor adjustment did not result in a reduction of the fine, as the Court deemed the overall gravity and duration of the infringement sufficient to justify maintaining the original penalty of €3,993,000.
Conclusion
The General Court’s judgment underscores the EU’s resolute commitment to enforcing competition law, particularly in the complex and specialised financial markets exemplified by the SSA bond sector. By confirming the Commission’s findings on a single and continuous infringement and endorsing a tailored fine calculation methodology, the Court demonstrates the flexibility and precision of enforcement tools in tackling sophisticated and opaque collusive practices. The decision reinforces key principles of liability and imputability, holding organisations accountable for anticompetitive conduct, even when such conduct arises indirectly through employee actions or inherited knowledge. Additionally, the Court’s emphasis on maintaining significant penalties reflects its prioritisation of deterrence, ensuring fines capture the economic gravity of the infringement while signalling a strong commitment to preserving market integrity.
Camila Sánchez serves as a Senior Associate in the Competition Practice at a law firm based in Ecuador.
Sánchez, C.; “Breaking Bonds: EU General Court confirms Cartel Findings and Fines in SSA Bond Market Case (T-386/21 and T-406/21)”, EU Law Live, 03/12/2024, https://eulawlive.com/analysis-breaking-bonds-eu-general-court-confirms-cartel-findings-and-fines-in-ssa-bond-market-case-t-38621-and-t-406-21/
THE LONG READ
Neither Intangible nor Sacred? Long Live the Rule of Law!
Laurence Burgorgue-Larsen 1
The rule of law is neither intangible nor sacred’. The words uttered by France’s new Minister of the Interior, Bruno Retailleau, seven days after his appointment,2 have aroused the emotions of some, but the satisfaction of others –a cleavage typical of the polarised societies that are now prevalent in Europe and beyond. How can we analyse this ‘political outburst’? What does it reveal about the discourse of certain players on the political scene? As ever, it all depends on where you start from.
From an academic point of view, we have to recognise that the concept of the rule of law –like that of democracy, populism, illiberalism or authoritarianism– is at the heart of numerous disputationes between intellectuals (historians, philosophers, lawyers, political scientists). They all agree that it is impossible for such concepts to converge to a definition, both in time and in space.3 Each author, or at least each school of thought, proposes its own definition, starting with that of democracy, which has marked the functioning of many societies since 1945. Nor does the concept of the rule of law escape this definitional aporia. Although it is well known that it has strong links with British constitutional history4 and German constitutional history,5 and that –thanks to the circulation of ideas– it has come to permeate the analytical matrix of other legal orders such as the French legal system,6 there is no clear, common definition that would rally all researchers. They struggle to agree on an indisputable vision of the rule of law. In other words, the rule of law is no more unanimously accepted than any other key concept in politics. This is true in the academic field.
In the political arena, the concept of the rule of law has over time become a standard that reveals the existence of limits to absolutism, on the one hand, and to attacks on human rights, on the other. In other words, it has a major symbolic force in drawing the boundaries between regimes that are democratic and those that are not –or that are less and less so. This shift from the academic field to the political arena is due to a series of factors (both external and internal). First of all, the rule of law has become central to the founding narrative of institutions that are
1. Professor of public law at the Sorbonne Law School (University of Paris 1).
2. Interview given by Bruno Retailleau to JDNews on 28 September 2024.
3. For example, on the subject of populism and democracy, historian Pascal Ory states: ‘When applied to a concept in the political field, vagueness is far from being the property of populism. To take just one of the terms most often associated with it, ‘democracy’ is far from being crystal clear’, Peuple souverain. De la révolution populaire à la radicalité populiste, Paris, Gallimard, 2017, p. 35.
4. I’m talking about the Rule of Law, as theorised by Albert Van Dicey. According to the British author, the Rule of Law is characterised by three elements: 1. a government that acts within the framework of respect for legal norms and procedures rather than on the basis of unconstrained discretionary power; 2. formal equality before the law; 3. the establishment of individual rights.
5. Georg Jellinek’s The Modern State and the Law (1900) formulated the principle of the self-limitation of the state by law.
6. The formal conception of the rule of law, which originated in Germany, was adopted in France by authors such as Duguit and Carré de Malberg.
essential to the work of the United Nations,7 the Council of Europe8 and the European Union,9 which promote the rule of law as the indicator par excellence of good democratic governance. These normative discourses, backed up by important case law, have put forward elementary criteria for preserving the democratic functioning of political systems, namely the separation of powers (from which derives the independence of the judiciary) and the protection of fundamental rights (which entails respect for the principles of legality and legal certainty), both of which feature in Article 16 of the Declaration of the Rights of Man and of the Citizen10 . Secondly, with the growing interconnection of the international and domestic legal orders, these narratives have been reappropriated by a series of domestic actors: those of the judiciary (judges and lawyers) and those who bring life to the polis on a daily basis (politicians, representatives of the people or members of the Executive). It is at this level that all kinds of manipulation are possible, betraying ideological convictions and political agendas.
Bruno Retailleau’s statement must therefore be seen in the context of political action. By stating outright that the gauge of a regime’s democratic quality can be altered on purpose, the Minister of the Interior is playing, for political ends, with the dikes patiently put in place since the Second World War to prevent the return of the ghosts of the past: the emergence of discretionary power eliminating all checks and balances. In a word, he is playing with fire by using the most familiar mechanisms of the populist matrix. Using an unfortunate and sad news item11–which gives him the opportunity to essentialise foreigners– he intends to seduce his supporters by telling them what they want to hear and have been demanding for a long time: a discourse of authority that would re-establish popular sovereignty by disregarding the law, deemed too restrictive. In his view, ‘the source of the rule of law is democracy, it is the sovereign people’.12
This disjunction between democracy and the rule of law is pernicious. It fundamentally calls into question what post-war law has patiently put in place since the Nazis came to power in Germany in the elections of 1933. It should be remembered that while elections are necessary for a democratic regime to come into being, they are not sufficient. Once in power, whoever wins the elections must respect the separation of powers and protect fundamental rights, hence the importance of checks and balances embodied in judges who are able to protect the rights of minorities. This counter-majoritarian force attributed to judges13 is one of the achievements of
7. United Nations Secretary-General, Delivering justice: programme of action to strengthen the rule of law at the national and international levels (A/66/749), 16 March 2012; Strengthening and coordinating United Nations rule of law activities (A/76/235), 26 July 2021.
8. The Venice Commission (CDL-AD (2016)007, Study No. 711/2013, 12 March 2016) plays a major role in this respect.
9. The rule of law is mentioned among the ‘values’ of the European Union (Article 2 TEU). In this context, the European Commission has published a report on the rule of law every year since 2019. The 2024 report (COM (2024) 800 final/2) is available here. ‘Values’ are also a complex concept that can backfire on those in the European field who promote them. See the very subtle article that Prof. Edouard Dubout was kind enough to send me before publication: ‘Can European values be defended by law?’.
10. ‘Any society in which the guarantee of rights is not ensured, nor the separation of powers determined, has no constitution’.
11. The murder of a young female student at Paris Dauphine University on the outskirts of the Bois de Boulogne by a Moroccan national subject to an OQTF (Obligation de quitter le territoire français).
12. To quote the entire sentence: “[The rule of law] is a set of rules, a hierarchy of norms, judicial control, a separation of powers, but the source of the rule of law is democracy, it is the sovereign people”.
13. In the vast majority of States, these are constitutional judges.
liberal constitutionalism, which has been reinforced by the establishment of regional courts for the protection of rights.14 The latter can ‘come to the rescue’ of constitutional judges when they are attacked by executives who try to manipulate their composition and/or fail to implement their decisions.
Nowadays, however, this post-war construction is being targeted by those who want to put the wishes of the majority, embodied by an unidentified ‘people’ who can be mobilised at will, back at the heart of the democratic process.
A look at the recent past will show that this political offensive is the result of a slow but very clear dissemination of ideas promoted by intellectuals in the limelight of the omnipotent media in France.15 If we take up the theory of the ‘Overton window’,16 it turns out that discourses that would have been unthinkable just fifteen or twenty years ago have now entered the public arena with disconcerting ease. The rise of anti-rights, anti-judge and anti-European rhetoric has become commonplace, permeating minds, structuring discourse and appealing to ever wider sectors of the population (I). The paradox is that the European courts, far from increasingly restricting the sovereignty of the signatory states, have moved in the opposite direction, described as a self-restraint turn, in that they are granting an ever-greater scope for interpretation to the domestic law of the signatory states. The criticism levelled at the ECtHR is therefore out of step with the times. French citizens should reflect on the fact that this denigrating rhetoric first flourished in Central Europe (II).
A Look Back at the Rise of Anti-Rights, Anti-Judge and Anti-European Rhetoric
Since roughly the 2010s, ideas that for a long time had been confined to very limited media - namely essays or periodicals known only to a few circles of intellectuals –have entered the wider media arena, and hence the political arena, with a bang.17 These ideas have been put forward by jurists and philosophers who denounce two shortcomings of States: the inflation of individual rights, which they accuse of undermining the general public interest and popular sovereignty, and the omnipotence of European judges, which they claim undermines the sovereignty of nations.
14. We refer here to our work, The 3 Regional Human Rights Courts in context. Justice that cannot be taken for granted, Oxford, OUP, 2024, p. 576.
15. Those of the ‘Bolloré group’, whose leader has set out to promote his Christian values and right-wing political convictions.
16. I would like to thank Jean-Yves Delamarche for telling me about this theory. Invented by the political scientist Joseph P. Overton as part of his work at the Mackinac Center for Public Policy, it is also known as the ‘discourse window’: see overview here. It refers to the set of ideas, opinions or practices considered acceptable in public opinion at a given time. The theory proposes that ideas can be classified according to a spectrum of acceptability: 1. Inconceivable; 2. Radical; 3. Acceptable; 4. Sensible or reasonable; 5. Popular; 6. Integrated into public policy.
17. Channels such as CNews and C8, weekly publications such as Valeurs actuelles and now JDNews, and radio stations such as Europe 1 have all helped to popularise these criticisms.
The liberal logic underlying individual rights is said to have led to a hypertrophy of subjectivism.18 This exasperates philosophers and jurists who maintain that democracy does not (automatically) go hand in hand with the protection of rights. This criticism has been consistently voiced by the French philosopher and historian Marcel Gauchet.19 In the legal sciences, professors of public and private law have also developed an ‘anti-rights’ argument in which the judge is seen as a scarecrow.20 In their view, society is being undermined by the primacy given to rights.21 They cite, in no particular order, the Council of State, the Court of Cassation, the Constitutional Council as embodying a ‘juristocracy’ out of touch with popular aspirations. The diatribe takes an anti-European turn when it targets the Court of Justice of the European Union (CJEU) and, even more so, the European Court of Human Rights (ECtHR). The ECtHR’s methods of interpretation are said to be too open-ended; its case law on life, sex, death and the family is said to be too liberal, and to constantly jeopardise society, whose cohesion would have to bow to the Judeo-Christian doctrines of marriage (reserved for people of different sexes), life (prohibition of abortion), death (prohibition of euthanasia) and fertility (hostility to assisted reproduction techniques). In the same vein, they express alarm at the transformations in French society, which is becoming increasingly diverse in terms of its origins, and denounce what they deem to be ‘uncontrolled’ immigration: they call on the State to restore its authority by controlling national borders.
These diatribes spread easily from certain academic cenacles22 to media outlets that share the same ideologies.23 At the forefront of this full-scale offensive is –paradoxically enough– a Conseiller d’État who was Secretary General of the Constitutional Council from 1997 to 2007, Jean-Éric Schoettl. Over the last few years, he has constantly denounced the power of judges, as can be seen from the title of his latest essay.24 His opinion pieces
18. This is a ‘classic’ criticism, according to which the primacy of the individual is at the root of the disintegration of the legal order. It has been put forward by authors such as L. Josserand, H. Battifol and Jean Carbonnier in his well-known opus, Droit et passion du droit sous la Ve République, Paris, Flammarion, 1996.
19. M. Gauchet, ‘Les droits de l’homme ne sont pas une politique’, La démocratie contre elle-même, Paris, Gallimard, 2002. From the same author, ‘Que faire des droits de l’homme?’, Revue des Deux Mondes, February-March 2018, p. 8: ‘Un nouvel homme des droits de l’homme est né qui n’a rien à voir avec son ancêtre de 1789’.
20. Professor emeritus of constitutional law Bertrand Mathieu consistently unfolds this criticism in his books (ad. ex., Le droit contre la démocratie, Paris, LGDJ, 2017) or articles (ad. ex., ‘Une démocratie ne peut être exclusivement fondée sur la protection des droits individuels’, Mélanges en l’honneur de Frédéric Sudre, Les Droits de l’homme à la croisée des droits, Paris, LexisNexis, 2018, pp. 434-459).
In the same vein, we might mention the constitutionalist Anne-Marie Le Pourhiet and the administrativist Gilles Lebreton (author of a textbook on Human Rights and Public Freedoms, before becoming an RN deputy in the European Parliament), two figures critical of the ‘government of judges’ and more specifically of the two European courts. In the field of private law, authors such as Philippe Malaurie, François Chénedé and Pierre-Yves Gautier criticise the dismantling of civil law, which they believe is attributable to the individualist approach to the protection of human rights.
21. B. Mathieu, ‘Une démocratie ne peut être...’, op.cit, p. 434: ‘If we take into account the reconciliation between [collective] requirements and the rights of individuals, the generally accepted view that human rights and democracy form an indissociable whole deserves to be reconsidered.../...the development of an essentially individualistic conception of fundamental rights contributes to the tearing apart of the social fabric, to the splintering of the notion of general interest, and to a system of communitarian and competitive values that weaken democracy’.
22. A-M. Le Pourhiet, ‘La Cour européenne des droits de l’homme et la démocratie’, Constitutions, 2018, p. 205; F. Chenedé, ‘Le droit à l’épreuve des droits de l’homme’, Mélanges en l’honneur du professeur Gérard Champenois, Paris, Defrénois, 2012, pp. 139-188.
23. See the comments made by Éric Zemmour for years on the CNews channel, which trivialised criticism of the judiciary in general, and of the ECtHR in particular.
24. La démocratie au péril des prétoires. De l’État de droit au gouvernement des juges, Paris, Gallimard, 2022, p. 256.
and pamphlets, which are relentlessly anti-rights, anti-judge and anti-European, are finding a growing echo in the media, with the support of very active think tanks that include former figures from the world of the judiciary, business and politics.25 His hobbyhorse: denouncing the hold of European courts over national judges, whom he accuses of destroying the nation, reducing our sovereignty and depriving the French nation of the means to control its own destiny. The creation of such judges would turn the law into an intolerable constraint. Criticism of the ‘government of judges’ thus perniciously revives the old hostility of the French right to the project of European integration. Ideas that were incongruous fifteen years ago are now making a splash in the public arena. In 2015, Pierre Lellouche, former Secretary of State for European Affairs, presented the National Assembly with a motion for a resolution aimed at renegotiating the conditions for referral to the European Court of Human Rights and its powers.26 In 2016, François Fillon, a former presidential candidate, threatened to withdraw from France’s membership of the ECHR if changes were not made to the treaty system.27 In 2019, Marine le Pen called for France to ‘withdraw’ from the ECHR.28 In 2023, Interior Minister Gérald Darmanin openly declared that he would not comply with an interim measure ordered by the ECtHR.29 In 2024, Bruno Retailleau, who had just been appointed Minister of the Interior, placed the power of ‘the people’ above the rule of law. The ‘window of discourse’ has certainly changed. The paradox is that this controversy clearly runs counter to the evolution of the European Courts.
Speeches against the Times
Accused of defending individual rights to the detriment of States, the European Court of Human Rights is the focus of criticism (not to say hatred), even though its case law, since the Brighton turning point, has become singularly more sensitive to the demands of the States.30 The latter have succeeded in expressly reaffirming the principles of ‘subsidiarity’ and ‘national margin of appreciation’ in the preamble to the European Convention. The message was well received: the Court has since become much more deferential towards them (hence the expression ‘deferential turn’). Whether it is a question of providing a practical framework for certain religious rites,31 penalising the clients of prostitutes32 or investigating the origins of a person,33 the ECtHR is referring more and more frequently to the ‘quality of parliamentary debate’ to better validate the measures taken by national legislators. Since 2013, the quality of the way in which legislation is adopted has become a major factor in the scrutiny of laws,34 at a time when France was experiencing increasing media coverage of criticisms of the
25. Ad. ex. the Cercle Droit et débat public created in 2014 or the Res publica Foundation 26. See here.
27. Speech in Toulouse on 25 October 2016.
28. Speech in Nanterre on 17 January 2019.
29. Order of 13 November 2023, which overrules a request for a provisional measure ordered on 7 March 2022 by the ECtHR enjoining the French State not to extradite a radicalised Uzbek while the applicant’s request is being examined. The Conseil d’État reminded the government, quite rightly, of the elementary respect for the law (CE, Ord., 7 Dec. 2023, no. 489817).
30. Allusion to the Diplomatic Conference organised by David Cameron in Brighton in April 2012, with a view to reforming the operation of the Court.
31. ECtHR, 13 February 2024, Executief Van de Moslims Van België v. Belgium
32. ECtHR, 25 July 2024, M.A. and others v. France.
33. ECtHR, 7 September 2023, Gauvin-Fournis and Siliau v. France.
34. ECtHR, GC, 22 April 2013, Animal defenders International v. United Kingdom
conservatism of Parliament. Even migration issues are now subject to an extremely cautious analysis by the European Court, which is leading it to rule more and more often in favour of the States,35 in contrast to the anathemas and caricatured attacks it continues to receive.
This desire to place the ‘sovereign people’ above the rule of law is all the more worrying because it first arose in Eastern European countries to justify anti-democratic excesses. The approach championed by Viktor Orban in his speech on 26 July 2014,36 has had the consequence of putting an end to the independence of the judiciary and affecting the rights of the most vulnerable people: homosexuals, Roma, migrants, human rights defenders, independent journalists. The same process of democratic backsliding took place in Poland when the PiS took power by destroying the judicial system through a series of legislative salvos. In 2021, when the Polish Constitutional Court, then controlled by the government, asserted the primacy of Polish law over European Union law, without giving the slightest reason (an elementary prerequisite for any judicial decision),37 Jean-Éric Schoettl welcomed the decision on the grounds that the European Union’s ‘intrusion’ into the reorganisation of the Polish judiciary constituted an ‘unacceptable interference’.38 Faced with the deliberate destruction of the independence of the judiciary, the two European Courts, in unison, recalled the fundamentals and, whatever the cost, maintained the dikes.39
It is therefore more important than ever to assess the consequences of these speeches, which aim to overturn the rule of law. By claiming to dissociate democracy from the rule of law, we are cultivating a legal nostalgia for the bygone era when the legal system was reduced to the law. To do this is to forget the tremendous metamorphosis that has taken place since 1945 in the operation of legal systems, in France as elsewhere. It is time to recognise that the Constitution and the Conventions guaranteeing rights have taken up a privileged place in contemporary legal systems, that they evolve in a combined way in a system where the judge, without taking the place of the legislators, nonetheless guarantees the rights they enshrine. Everything is about balance and complementarity, not division and separation.
The best lesson in this respect was recently given by the Strasbourg Court in the important climate case known as the ‘Elders for Climate Protection’ case:
35. ECtHR, GC, 21 November 2019, Z .A. and Others v. Russia; ECtHR, GC, 21 November 2019, Ilias and Ahmed v. Hungary.
36. Speech translated into English on the Budapest Beacon website. In it, Viktor Orban states that “the new state that we are building in Hungary is an illiberal state, a non-liberal state” that will not “reject the fundamental principles of liberalism such as freedom”, but will instead “not make this ideology the central element of the organisation of the state”, which “includes a different, special, national approach”.
37. Polish Constitutional Court, 7 October 2021, K 3/21.
38. J-E. Shoettl, « L’affaire polonaise met à nu les ingérences de l’Union européenne dans les souverainetés nationales », Actu-juridique, 2 November 2021; For a well-argued response to J-E. Shoettl, see S. Platon, ‘La décision du ‘Tribunal’ constitutionnel polonais sur la primauté du droit de l’Union européenne. A response to J-E. Shoettl’, Revuedlf, 2021
39. Ad. Ex., ECtHR, GC, 23 June 2016, Baka v Hungary; ECtHR, GC, 1er December 2020, Guomundur Andri Astroasson v Iceland; ECtHR, 23 November 2023, Walesa v Poland; CJEU, 27 February 2018, Associação Sindical dos Juízes Portugueses C-64/16; CJEU, 24 June 2019, Commission v Poland, C-619/18, (so-called case on the independence of the Supreme Court); CJEU, 5 November 2019, Commission v Poland, C-192/18, (so-called case on the independence of the courts)
‘Judicial intervention, including that of the Court, cannot replace the measures that must be taken by the legislative and executive powers, or provide a substitute for them. However, democracy cannot be reduced to the majority will of voters and elected representatives, in defiance of the requirements of the rule of law. The jurisdiction of the domestic courts and the Court therefore complements these democratic processes. The task of the judiciary is to ensure the necessary control of compliance with legal requirements’.40
Could it have been said any better?
40. ECtHR, GC, 9 April 2024, Verein Kilmaseniorinnen Schweiz and others v. Switzerland, para. 412
HIGHLIGHT F THE WEEK S O
Commission Implementing Regulation (EU) 2024/2954 amending Regulation (EU) 2015/640 introducing new additional airworthiness requirements, published in OJ
Monday 2 December
Official publication was made of Commission Implementing Regulation (EU) 2024/2954 of 29 November 2024, which aligns existing regulations with evolving safety needs and international standards, ensuring continued operational reliability across various aircraft categories.
Read on EU Law Live
Court of Justice streaming hearing in infringement against Hungary’s refusal to grant Klubrádió rights of use of radio frequencies
Monday 25 November
The Court of Justice, sitting in its Grand Chamber formation, streamed its hearing in Commission v Hongrie (Droit de fournir des services de médias dans une radiofréquence) (C-92/23), a case concerning the European Commission’s claim that, by refusing Klubrádió’s rights of use of radio frequencies, Hungary has breached several provisions of EU secondary law on electronic communications networks and services, as well as Article 11 of the EU Charter of Fundamental Rights and the general principles of proportionality, non-discrimination and good faith.
Read on EU Law Live
Uniper Global challenges ACER decision setting transitional and adjustable price limits in the electricity market
Monday 2 December
Official publication was made of a legal action initiated by Uniper Global Commodities SE against the European Union Agency for the Cooperation of Energy Regulators (ACER), a dispute concerning ACER’s Decision (No 09/2024) setting transitional and adjustable price limits in the electricity market.
Read on EU Law Live
Austrian court seeks EU guidance on online content-sharing service providers and users
Monday 2 December
The Austrian Federal Administrative Court (Bundesverwaltungsgericht) referred key questions to the Court of Justice on the application of EU copyright laws to online content-sharing service providers and users
Read on EU Law Live
General Court to hear action for annulment against Commission’s conditional marketing authorisation for medicine used to treat inherited bleeding disorders
Monday 2 December
CSL Behring’s action seeking the annulment of Commission Implementing Decision (2024)5447 of 24 July 2024 granting a conditional marketing authorisation under Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 for ‘Durveqtix – fidanocogene elaparvovec’ was officially published.
Read on EU Law Live
Commission Implementing Regulation (EU) 2024/2954 amending Regulation (EU) 2015/640 introducing new additional airworthiness requirements, published in OJ
Monday 2 December
Official publication was made of Commission Implementing Regulation (EU) 2024/2954 of 29 November 2024, which aligns existing regulations with evolving safety needs and international standards, ensuring continued operational reliability across various aircraft categories.
Read on EU Law Live
Council adopts new cybersecurity laws to enhance solidarity and resilience
Monday 2 December
The EU Council adopted two new cybersecurity laws: the Cyber Solidarity Act and a targeted amendment to the 2019 Cybersecurity Act (CSA), aiming at bolstering EU-wide cybersecurity detection, preparedness, and response capacities while fostering cooperation across member states.
Read on EU Law Live
Commission Implementing Regulation (EU) 2024/2954 amending Regulation (EU) 2015/640 introducing new additional airworthiness requirements, published in OJ
Monday 2 December
Official publication was made of a request for a preliminary ruling from the Oberster Gerichtshof (Austria), lodged on 20 August 2024, in Volkswagen AG v QW, which concerns the interpretation of certain provisions of Commission Regulation (EC) 692/2008 implementing and amending Regulation (EC) 715/2007 on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information, read in conjunction with the provisions of that regulation.
Read on EU Law Live
ECtHR rules no violation of family rights in Greek custody case
Tuesday 3 December
The European Court of Human Rights (ECtHR) ruled that Greece did not violate the family rights of a Greek father, Georgios Giannakopoulos, when its courts dismissed his custody application for his two children, citing lack of jurisdiction under EU regulations.
Read on EU Law Live
Court of Justice to stream hearing of preliminary reference on (in)compatibility with EU law of refusal to enter certificate of same-sex marriage into Polish civil registry
Tuesday 3 December
The Court of Justice’s Grand Chamber hearing in Wojewoda Mazowiecki (C-713/23), a case concerning a preliminary ruling from the Polish Supreme Administrative Court on question of the (in)compatibility with EU law of the refusal to enter into the civil registry a certificate of a same-sex marriage contracted in another Member State, was streamed on the Court’s website.
Read on EU Law Live
ECtHR: no violation of fair trial rights for former Banco Espírito Santo chair in Espírito Santo Silva Salgado v. Portugal
Tuesday 3 December
The European Court of Human Rights (ECHR) unanimously ruled that there was no violation of the right to a fair trial or the presumption of innocence for Ricardo Espírito Santo Silva Salgado, the former chair of Banco Espírito Santo (BES), one of Portugal’s leading private banks before its collapse in 2014: Espírito Santo Silva Salgado v. Portugal (application no. 30970/19).
Read on EU Law Live
Commission’s Communication on the withdrawal of its Guidance on a revised approach of Article 22 EUMR, published in OJ
Tuesday 3 December
Official publication was made of a Communication from the Commission concerning the withdrawal of act 2021/C 113/01, the purpose of which is to withdraw the Commission’s Guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation to certain categories of cases, following the Court of Justice’s judgment in the Illumina/ GRAIL case.
Read on EU Law Live
Preliminary ruling request on whether a vehicle’s pollution control device constitutes a prohibited defeat device, under Regulation 715/2007
Tuesday 3 December
Official publication was made yesterday of a request for a preliminary ruling from the Bezirksgericht Graz-Ost (Austria) lodged, on 14 August 2024, concerning, in essence, the scope of application Regulation 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (: V AG (C-559/24).
Read on EU Law Live
Standing Committee of the Bern Convention votes in favour of the EU proposal to adapt the protection status of the wolf
Tuesday 3 December
The Standing Committee of the Bern Convention approved the EU’s proposal to change the wolf’s protection status from “strictly protected” to “protected,” effective from 7 March 2025.
Read on EU Law Live
Council recommends stricter measures against second-hand smoke and aerosols
Tuesday 3 December
The Council adopted a recommendation aimed at reducing exposure to second-hand smoke and aerosols, supporting the goal of a tobacco-free generation in Europe by 2040, as outlined in Europe’s Beating Cancer Plan.
Read on EU Law Live
EDPB publishes Guidelines on third-country data transfers and new European Data Protection Seal
Tuesday 3 December
The European Data Protection Board (EDPB) published its Guidelines on Art.48 GDPR concerning data transfers to third country authorities and approved a new European Data Protection Seal.
Read on EU Law Live
Official publication of Directive (EU) 2024/2994 and Regulation (EU) 2024/2987 clearing services and exposure to systemically important central counterparties
Wednesday 4 December
Official publication was made of Directive (EU) 2024/2994 regarding the treatment of concentration risk arising from exposures towards central counterparties and of counterparty risk in centrally cleared derivative transactions and Regulation (EU) 2024/2987 regarding measures to mitigate excessive exposures to third-country central counterparties and improve the efficiency of Union clearing markets.
Read on EU Law Live
Commission Implementing Regulations on person identification data and electronic attestations of attributes relating to EDIW, published today
Wednesday 4 December
Official publication was made of five Commission Implementing Regulations on the application of Regulation (EU) 910/2014 of the European Parliament and of the Council as regards person identification data and electronic attestations of attributes issued to European Digital Identity Wallets (EDIW).
Read on EU Law Live
European Labour Authority vacancy: Head of Executive Director’s Office, Legal and Compliance
Wednesday 4 December
The European Labour Authority published a vacancy announcement regarding the establishment of a reserve list of Temporary Agents for a position of Head of the Executive Director’s Office, Legal and Compliance.
Read on EU Law Live
Council reaches a provisional agreement with the European Parliament on a proposed targeted amendment of the EU deforestation regulation
Wednesday 4 December
The EU reached a provisional agreement on a targeted amendment to its deforestation regulation, which, upon its final confirmation by the Council and Parliament, will delay the application date of the regulation by one year, from December 2024 to December 2025.
Read on EU Law Live
General Court upholds Commission’s anti-dumping duties on imports of glass fibre fabrics originating from China, consigned from Morocco
Wednesday 4 December
The General Court (Extended Composition) delivered its judgment concerning PGTEX Morocco’s actions brought against two Commission Implementing Regulations extending definitive anti-dumping duties imposed on imports of certain woven and/or stitched glass fibre fabrics (‘GFF’) originating in the People’s Republic of China and consigned from Morocco: PGTEX Morocco v Commission (T-245/22) and PGTEX Morocco v Commission (T-246/22).
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Council recommends stricter measures against second-hand smoke and aerosols
Wednesday 4 December
The Council adopted a recommendation aimed at reducing exposure to second-hand smoke and aerosols, supporting the goal of a tobacco-free generation in Europe by 2040, as outlined in Europe’s Beating Cancer Plan.
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EPPO Annual Report 2023 highlights growing threat of cross-border fraud
Wednesday 4 December
The European Public Prosecutor’s Office (EPPO) Annual Report for 2023 was published, revealing that serious organised crime continues to significantly impact the EU budget, particularly through VAT fraud and fraudulent activities involving EU funds.
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European Commission begins negotiations to revise interinstitutional framework agreement with European Parliament
Wednesday 4 December
The European Commission adopted a mandate to begin negotiations for revising the 2010 interinstitutional framework agreement with the European Parliament, as part of the Commission’s commitment under President Ursula von der Leyen’s political guidelines for the 2024-2029 term.
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Council advances financial data access framework to boost competition and consumer protection
Thursday 5 December
The Council of the European Union reached an agreement on the Financial Data Access (FIDA) framework, which aims to create a more competitive financial market by enabling the development of personalized financial products and services, including tailored investment opportunities and streamlined loan processes.
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Commission Decision 2024/3080 amending Rules of Procedure of the Commission, officially published
Thursday 5 December
Commission Decision (EU) 2024/3080 of 4 December 2024 amending Decision C(2000) 3614 establishing the Rules of Procedure of the Commission was published in the OJ.
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EDPB highlights need for additional coherence of EU digital laws with the GDPR
Thursday 5 December
On the 4th of December, during its plenary, the European Data Protection Board (EDPB) adopted its statement on the application of the GDPR, building on previous publications from the European Commission and the Fundamental Rights Agency.
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Comprehensive guide to legal aid applications for direct actions at the General Court, published in OJ
Thursday 5 December
The Legal Aid Form facilitates access to legal assistance for individuals or entities pursuing or involved in direct actions at the General Court and serves as a critical tool for ensuring equitable access to justice for those unable to afford legal proceedings. Read on EU Law Live
Court of Justice: Potential restrictive effects on competition are sufficient to determine anticompetitive conduct under Article 101(1) TFEU
Thursday 5 December
The Tenth Chamber of the Court of Justice delivered its judgment in a case concerning a preliminary ruling request from the Administratīvā apgabaltiesa (Latvia) on the interpretation of Article 101(1) TFEU in regard to the potential restrictive effects on competition: Tallinna Kaubamaja Grupp and KIA Auto ( C-606/23).
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Court of Justice interprets concept of ‘product’ within the meaning of the Unfair Commercial Practices Directive
Thursday 5 December
On 5th December, the Court of Justice handed down judgment in Guldbrev (C-379/23), a request for a preliminary reference from the Court of Appeal, Stockholm (Sweden), concerning the interpretation of Articles 2(c), (d), (i), and 3(1) of Directive 2005/29 on unfair business-to-consumer commercial practices in the internal market (‘Unfair Commercial Practices Directive’ or ‘UCPD’).
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Union law allows national courts to declare void a European order for payment which has been served in disregard of the minimum standards set out in Regulations 1896/2006 and 1393/2007
Thursday 5 December
The Court of Justice handed down judgment in Bulgarfrukt – Fruchthandels GmbH (C-389/23), a request for a preliminary ruling from the District Court in Berlin-Wedding (Germany) concerning the interpretation of Regulation 1896/2006 creating a European order for payment procedure and Regulation 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.
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Court of Justice: Potential restrictive effects on competition are sufficient to determine anticompetitive conduct under Article 101(1) TFEU
Thursday 5 December
The Tenth Chamber of the Court of Justice delivered its judgment in a case concerning a preliminary ruling request from the Administratīvā apgabaltiesa (Latvia) on the interpretation of Article 101(1) TFEU in regard to the potential restrictive effects on competition: Tallinna Kaubamaja Grupp and KIA Auto ( C-606/23).
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MISTRAL TRANS: Court of Justice interprets the concept of ‘external accountants’ within the meaning of Article 2(1)(3)(a) of Directive 2015/849.
Thursday 5 December
The Court of Justice handed down judgment in MISTRAL TRANS (C-3/24), a request for a preliminary ruling from the Supreme Court, Latvia, concerning the interpretation of Articles 2(1)(3)(a) and 58(1) of Directive 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing.
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Commission holds roundtable with very large online platforms and search engines, in the context of elections in Romania
Thursday 5 December
The European Commission confirmed its commitment to enforce the Digital Services Act in relation to Very Large Online Platforms and Search Engines (VLOPs and VLOSEs), in the context of the ongoing elections in Romania, with the aim of ensuring that such platforms uphold their responsibility in safeguarding electoral processes.
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Council adopts general approach on two proposals, part of the Passenger Mobility Package
Thursday 5 December
The Council adopted its negotiating position on two proposals, involving a draft regulation amending five different sectoral regulations regarding the enforcement of passenger rights in the EU, and a draft regulation on passenger rights in the context of multimodal journeys.
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Regulation on certification of carbon removals and soil emission reductions, published in OJ
Friday 6 December
Official publication was made of Regulation 2024/3012 of the European Parliament and of the Council of 27 November 2024 establishing a Union certification framework for permanent carbon removals, carbon farming and carbon storage in products.
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Directive amending existing rules on investigation of accidents in maritime transport, officially published
Friday 6 December
Directive 2024/3017 of the European Parliament and of the Council amending Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and repealing Commission Regulation (EU) No 1286/2011 was published in the OJ.
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Opinion of Advisory Committee on mergers and Final Report of Hearing officer in Vivendi/Lagardere case: official publication
Friday 6 December
Official publication was made today of the Opinion of the Advisory Committee on mergers and the Final Report of the Hearing Officer concerning the Commission’s Decision in case M.10433 - Vivendi/Lagardere.
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