The Week
9 - 13 December 2024
TABLE OF CONTENTS
IN-DEPTH:
Jeux sans Frontières?: The Interpretation of transnational Subsidies by the Court of Justice (Joined Cases C -269/23 P and C -272/23 P)
Evangelia Anevlavi & Marios Tokas
Trust me if I say so: on the Direct Effect of the InfoSoc Directive (Reprobel, C-230/23)
Giulia Dagnone
Lost in Translation: an Analysis of the COVID-19 Case Másdi (C-169/23)
Oskar J. Gstrein
Exclusivity Rebates in EU Competition Law: The End of the Intel Saga (Case C-240/22 P, Commission v Intel)
Andriani Kalintiri
Can the CDSM Directive’s TDM Exceptions solve Copyright-Related Issues in Generative AI, or is there a Need for Technical Solutions?
Maryna Manteghi
Defining Obligations contained in Democratic Principles: Member States cannot exclude EU Citizens from Political Party Membership (Cases C-814/21, C-808/21)
Nora Vissers
Harley Davidson: The Court of Justice’s Clarification of the economic Justification Test concerning Retaliatory Duties
Trajan Shipley
Article 19(1) TEU goes deeper: the Independence of European Judges begins within their own Courts (S, Case C-197/23)
Maciej Taborowski & Jakub Kocjan
THE LONG READ · SPECIAL EDITION
EU Accession to the European Convention on Human Rights: An EU Law Scholars’ Perspective
Edited by Federico Casolari
Dripping Water Hollows Out Stone…
Federico Casolari
Once Upon a Time Before the Accession of the EU to the ECHR: From Shadow to Light
Alezini Loxa and Xavier Groussot
Judicial Review in the Field of Common Foreign and Security Policy: The Implications of KS/KD and Neves 77 for EU Accession to the European Convention on Human Rights
Peter Van Elsuwege
The New Draft of the Union’s Accession Agreement to the European Convention on Human Rights: Fit for the Approval from the European Court of Justice?
Nicola Bergamaschi
HIGHLIGHTS OF THE WEEK
IN-DEPT H
Jeux
sans Frontières?:
The Interpretation of transnational Subsidies
by
the Court of Justice (Joined Cases C-269/23 P and C-272/23 P)
Evangelia Anevlavi & Marios Tokas
1. Introduction
This Op-Ed examines the judgment of the Court of Justice (the ‘Court’) in Joined Cases C-269/23 P and C-272/23 P. The cases stemmed from the Commission’s findings that Hengshi and Jushi –subsidiaries of a Chinese State-owned enterprise operating in Egypt – benefited from subsidies provided through a cooperative framework between China and Egypt, including financial incentives under the Belt and Road Initiative and tax exemptions within the China-Egypt Suez Economic and Trade Cooperation Zone.
2. Analysis
2.1. Financial Contributions by the Chinese Government to Companies in Egypt as Subsidies Attributed to the Egyptian Government
Before addressing the first ground of appeal regarding the Commission’s determination that financial contributions from the Government of China, either directly or through parent undertakings, could be attributed or imputed to the Government of Egypt, the Court made key preliminary observations. It concluded that the EU legislature had not intended to impose a specific WTO obligation under Articles 2(a), 2(b), and 3(1) of EU Regulation 2016/1037 (‘Basic AS Regulation’), emphasising the absence of explicit references of such intent within the regulation. Nonetheless, the Court acknowledged its obligation to interpret these provisions consistently with WTO law, guided by principles of good faith. Given the lack of WTO Dispute Settlement Body (‘DSB’) rulings on Article 1 WTO Agreement on Subsidies and Countervailing Measures (the ‘ASCM’), the Court asserted its authority to independently interpret the contested provisions, adhering to customary international law rules on treaty interpretation.
The Court, however, failed to address existing DSB clarifications on the relation between Article 1 ASCM and the 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts of the International Law Commission (‘ASR’). The WTO Appellate Body Report in US – Anti-Dumping and Countervailing Duties (China) acknowledged the ASR’s attribution rules as interpretative guidance. However, it concluded that the customary rules on attribution did not, as a matter of substance, modify the understanding of the term ‘government or public body’ in Article 1.1 ASCM.
2.2. Identity of the Person Granting the Subsidies and Territorial Links
The Court interpreted Articles 2(a), 2(b), and 3(1) of the Basic AS Regulation to clarify that financial contributions must originate from the conduct of a government or public body in the country of origin or export, which may involve formally granting or allowing entities to benefit from the subsidy. The Court noted that the Basic AS Regulation encompasses indirect financial contributions, such as those from foreign direct investments, if the government of the country of origin or export is involved in granting or enabling the contribution. According to the Court, this interpretation aligns with the regulation’s objective of counteracting trade-distorting subsidies, whether direct or indirect.
In the contested regulation, the Commission resorted to the ASR to interpret the term ‘by the government’ in Article 1.1(a) ASCM, in the context of attributing foreign conduct. The Commission referred to Article 11 ASR on the adoption and/or acknowledgement of foreign conduct as one’s own, as verified by the State’s actions, and reasoned that the Egyptian government explicitly adopted Chinese financing as part of its own policy and economic agenda. Thus, the conduct (i.e. the financial contribution) was also attributed to Egypt.
The Court, instead, focused on the term ‘within the territory of a Member’ in Article 1.1(a) ASCM, interpreting it as a quasi-jurisdictional criterion to determine whether the ASCM applies to certain subsidies, rather than as a factor for attributing conduct. Attribution of the conduct to a State was considered to be already established; the Court focused on whether such financial contributions fell under Article 1.1(a) ASCM. However, these are distinct steps both normatively and methodologically. The Commission considered that the act of subsidisation was attributed to Egypt (ergo, Egypt provided the subsidy), rather than categorising the subsidies as transnational subsidies attributed to China, which could still be covered by Article 1.1(a) ASCM and the Basic AS Regulation, as the Court analysed.
2.3. The Scope of Subsidies Disciplines
The Court interpreted the ASCM to include subsidies originating, wholly or partly, from a third WTO Member, provided the conduct of the latter government enables the subsidy. It found that Article 11.8 ASCM extends the notion of subsidies to those granted by an ‘intermediate’ country, and that Article 5 ASCM prohibits adverse effects from both granting and facilitating receipt of subsidies. The Court linked this interpretation to the ASCM’s object and purpose, as defined by GATT and the WTO DSB, to strengthen multilateral disciplines on subsidies to address complex, multi-country subsidy arrangements and promote fairness in global trade.
The Court avoids addressing the precise meaning of the term ‘within the territory of a Member’ in Article 1.1 ASCM. Instead, it focuses on the general required territorial link between the providing government and the exporter of the relevant subsidised products. There are significant contextual arguments as to why transnational subsidies are not covered (e.g. Article 2 ASCM refers to certain enterprises ‘within the jurisdiction of the granting authority’ and Article 18 ASCM refers to ‘government of the exporting Member’ as the only WTO Member that could offer undertakings in response to countervailing investigations), while the negotiating history of the ASCM
(e.g. the Tokyo Round Subsidies Code, which explicitly concerns domestic market interventions, and notes the concerns of US negotiators to exclude foreign aid schemes) also suggests an understanding that transnational subsidies are not covered.
The Court’s reference to Article 11.8 ASCM is rather convoluted. The provision clearly covers instances where a subsidised product is shipped through an intermediate country; yet the subsidy is provided in the country of origin. Critically, the provision clearly refers to goods originating in a WTO Member, which were imported through a third country, without changing origin. This does not cover instances in which a country subsidises products originating from a third country. The mere subsidisation does not provide originating status to a product.
The Court’s interpretation in other judgments under the Common Commercial Policy (‘CCP’) (see for example Case T-160/14) aligns with this understanding, as it emphasised that an intermediate country is one where only activities which do not confer origin occur, ensuring that the product retains its originating status from the country of origin despite passing through or being processed in a third country.
The broad interpretation that any subsidy provided by a WTO Member to a product originating in a third WTO Member is covered by the ASCM derives from a novel reading of Article 5 ASCM. This article defines ‘adverse effects’ narrowly, as injury to domestic industry, nullification or impairment of benefits and serious prejudice. However, the Court extended it to include conduct allowing entities within its territory or jurisdiction to benefit from a subsidy originating, wholly or partly, from another WTO Member; thus, contradicting Article 5 ASCM’s definition of ‘adverse effects’.
The Court’s interpretation relied on the ASCM’s objective to enhance GATT disciplines but lacked sufficient normative justification to deviate from the consensus that Articles 1.1 and 5 of the ASCM should not be interpreted expansively, as these provisions clearly define specific instances of governmental support to include and exclude. The Court’s conditions might be relevant for de facto inconsistencies with MFN or national treatment obligations under GATT 1994 (e.g., GATT Panel in US-MFN Footwear and Panel Report EU-Footwear, the latter on antidumping), Article X (uniform trade regulation administration), or a non-violation claim under Article XXIII(1) (b). However, the ASCM does not impose minimum standards for a State’s anti-subsidisation policy, as in many Free Trade Agreements.
3. Implications of the Judgments
The Court clarified that Article 3(1)(a) of the Basic AS Regulation was not intended to implement a specific WTO obligation but acknowledged its responsibility to interpret EU legislation consistently with WTO law and in good faith, particularly in the absence of any DSB ruling. However, its expansive interpretation of the ASCM, especially regarding transnational subsidies, disregarded existing DSB clarifications that support a narrower reading of ‘government or public body’ and territorial links under Article 1.1 ASCM. By conflating jurisdictional and attributional elements and extending the ASCM’s scope beyond its text and intent, the Court not only risks misaligning EU secondary legislation with WTO obligations but also raises concerns about judicial overreach.
This approach risks eroding the balance of powers between the judiciary and the legislature in shaping Common Commercial Policy, thereby undermining the predictability and coherence of the EU’s trade law framework.
For example, the Court’s expansive interpretation of the ASCM raises concerns over the Foreign Subsidies Regulation’s (‘FSR’) consistency with Article 32 ASCM, which restricts unilateral actions against subsidisation to those explicitly allowed under GATT 1994 and the ASCM, such as countervailing duties, provisional measures, price undertakings, or WTO-sanctioned countermeasures (United States –Offset Act). If the ASCM covers indirect or transnational subsidisation, the alleged regulatory gap cited in the Impact Assessment Report of the FSR would be narrow, potentially undermining the FSR’s consistency with the ASCM.
Evangelia Anevlavi is a lawyer specialising in sanctions and trade based in Paris, France and Athens, Greece.
Marios Tokas is lawyer and academic specialising in international and European economic law based in Geneva, Switzerland and Dubai, UAE.
Anevlavi, E. and Tokas, M.; “Jeux sans Frontières?: The Interpretation of transnational Subsidies by the Court of Justice (Joined Cases C-269/23 P and C-272/23 P)”, EU Law Live, 11/12/2024, https://eulawlive.com/op-ed-jeux-sans-frontieres-the-interpretation-of-transnational-subsidies-by-the-courtof-justice-joined-cases-c%e2%80%91269-23-p-and-c%e2%80%91272-23-p/
Trust me if I say so: on the Direct Effect of the InfoSoc Directive (Reprobel, C-230/23)
Giulia Dagnone
On 14 November 2024 the Court of Justice delivered its judgment in Reprobel (C-230/23), clarifying the interpretation of Articles 5(2)(a) and 5(2)(b) of the InfoSoc Directive. This is not the first time that the Court has been asked to interpret those provisions: this was done already in multiple previous judgments, most notably in Hewlett-Packard (C-572/13). Indeed, Hewlett-Packard is key in the Court’s argumentation to conclude that the above-mentioned provisions of the InfoSoc Directive have direct effect. A quick glance at the judgment is thus necessary to fully comprehend the Court’s findings in Reprobel.
Where It All Began
In Hewlett-Packard the Brussels Court of Appeal referred to the Court of Justice four questions for a preliminary ruling on the interpretation of Articles 5(2)(a) and 5(2)(b) of the InfoSoc Directive, which provide exceptions to the copyright holder’s reproduction rights in cases of specific reproductions on paper and copies made for private and non-commercial use on condition that the right holders receive fair compensation determined by national law.
The crucial issue before the Court was the compatibility of the Belgian levy system with the InfoSoc Directive, since it combined a lump-sum levy based on the speed of production of copies and an amount proportional to the number of copies produced.
The Court held that Articles 5(2)(a) and 5(2)(b) preclude a national legislation under which: i) the lump-sum remuneration paid in advance is calculated solely by reference to the speed of production of copies of devices; ii) the proportional remuneration varies according to whether or not the person liable for the payment cooperated in the recovery of that remuneration; iii) the combined system, taken as a whole, does not include mechanisms allowing the complementary application of the criterion of actual harm suffered and the criterion of harm established as a lump sum in respect of different categories of users.
Where Do We Stand?
In Reprobel a new controversy was raised relating to the Belgian law insofar as Copaco, a distributor of IT products for businesses and consumers, refused to pay Reprobel sums allegedly owed as fair compensation for reprography activities which should then have been distributed to authors and publishers.
Although in March 2017 a new regime for remuneration by way of fair compensation entered into force, the former regime for remuneration was still at issue in the case. The a quo judge referred the matter to the Court of Justice for a preliminary interpretative ruling asking, in substance, whether Articles 5(2)(a) and (b) of the InfoSoc Directive have direct effect; and whether Reprobel could be considered an entity holding ‘indirect public power’ so as to be included in the concept of ‘State’, with the consequence that Articles 5(2)(a) and (b) of the InfoSoc Directive are enforceable against it.
Conforming to the order chosen by the Court in its argumentation, the second issue will be analysed first. The direct effect issue will be addressed afterwards, even if, from a logical point of view, the latter is preliminary to the former, since in case of the inability of Articles 5(2)(a) and (b) to produce direct effects, the vertical or horizontal nature of the Copaco/Reprobel relationship becomes meaningless.
On Reprobel’s Special Powers
The Court of Justice answered the second issue in a rather straightforward manner. In fact, relying on its settled case-law, it recalled that some organisations or entities ‘can be distinguished from individuals and must be treated as comparable to the State, either because they are legal persons governed by public law that are part of the State in the broad sense, or because they are subject to the authority or control of a public body, or because they have been required, by such a body, to perform a task in the public interest and have been given, for that purpose, such special powers’ (Foster, C-188/89, para. 20, see E. Szyszczak, ‘Case C-188/89, Foster and Others v. British Gas plc’, in Common Market Law Review, 1990). As well known, in 2017, in the Farrell case (C-413/15, paras. 33-34), the Court of Justice removed Foster’s ambiguity clarifying that (see A. Sanchez-Graell here) the conditions are not cumulative.
In the case at hand, since Reprobel is not an organisation governed by public law nor is it controlled by the Belgian State, the Court found it necessary to determine whether it has special powers, a clear sign that it performs a task in the public interest.
In this regard, the Court easily and correctly noted – through a functional interpretation focused on the nature of the activities rather than on the formal legal status of the entity – that Reprobel can be compared to the State, in so far as it is entrusted with the collection and distribution of the remuneration for the copying of works fixed on a graphic by Royal Decree, regardless of the fact that it is the public authorities to determine the amount of the remuneration in question. Moreover, Reprobel has special powers, i.e. the power to claim remuneration by way of fair compensation, and to request information. The Court thus held, more generally, that ‘[t]he performance of tasks in the public interest does not mean that the organisation which carries out those tasks determines all aspects of them itself or that the powers it holds in order to perform them are necessarily discretionary’ (para. 40), thus deeming irrelevant the fact that it is the public authorities, rather than Reprobel, who determine the amount of the remuneration in question.
On the Unconditional Nature
of Articles 5(2)(a) and (b) of the InfoSoc Directive
To determine whether the two provisions of the case produce direct effect, it is essential that they be clear, precise and unconditional.
The unconditionality element is probably the most important one, since – to simplify – an unconditional provision is automatically clear and precise, while the opposite is not necessarily true (see D. Gallo, forthcoming, 285). As regards its content, it implies that the EU provision does not require the adoption of any further measure to be applied, meaning that no further elaboration is necessary for its application.
In Reprobel, the Court unsurprisingly found Articles 5(2)(a) and (b) to be precise and unconditional. It recalled the (Francovich) tripartite test to be carried out to establish whether a provision has direct effect, i.e. i) identity of the persons entitled to the protection provided in that provision, ii) content of that protection and iii) identity of the person liable to provide the protection.
As regards the second element, the Court evoked its previous case-law on Articles 5(2)(a) and (b), under which Member States are not bound to include in their national law the exceptions provided for in those provisions but, if they do so, they must provide also for the payment of fair compensation to the authors and consider the requirements relating to the structure and level of that compensation which flow from the interpretation of that provision (para. 54). And, as for those requirements, the Court referred to Hewlett-Packard, concluding that, therefore, the provisions are precise and unconditional.
It is not the first time, indeed, that the Court finds a provision which at first glance one would not consider clear/ precise/unconditional enough as able to be invoked by individuals in order to seek disapplication: this is why, in literature, many have referred to a ‘relaxed’, or ‘broadened’ test (D. Chalmers, G. Davies, G. Monti, 293; R. Schütze, 161).
In Reprobel, it is not thus the conclusion of the Court that is per se noteworthy. Nor is it particularly novel that the Court of Justice, in interpreting a provision, fills it with significance. Rather it is remarkable that the Court infers direct effect directly from its previous finding in Hewlett-Packard, departing from a close analysis of the applicable provision. In other terms, unconditionality is inferred, basically, from the requirements of compensation of Hewlett-Packard rather than from the Directive.
Concluding Remarks
Reprobel is part of a strand of case-law of the Court of Justice which clearly extends the recognition of direct (vertical) effects by widening the interpretation of the elements underlying their recognition, i.e. clarity, precision and – in this case – unconditionality.
While the doctrine of direct effect is intimately connected with and is an essential part of the constitutional structure of the European Union, greater rigour would be appropriate to increase legal certainty. The implicit risk
is that otherwise it may become progressively complex for individuals to rely on EU provisions to assert rights recognised to them by EU law, or even to obtain a review of the legality of national law provisions to benefit from the change in the legal situation resulting from the production of counter-effects by the application of EU law. In both cases, in fact, individuals need primarily to fully understand their legal positions or benefits deriving from EU law itself: if precision and unconditionality should be deduced mainly from case-law there would be a high risk of legal uncertainty. After all, ‘lack of clarity, most notably with regard to the constitutional principles of EU law, run the risk of undermining the spirit and purpose of the process of European integration’ (D. Gallo, cit., 288).
Although in Reprobel the Court places great emphasis on its case-law to grant rights to individuals, the legal reasoning does not seem to be entirely satisfactory. After all, the end does not always justify the means.
Giulia Dagnone is Assistant Professor of EU Law at the University of Camerino and qualified in Italy as Associate Professor of EU Law. She is the author of ‘L’interpretazione soggettiva nella giurisprudenza della Corte di giustizia dell’Unione europea’, Giappichelli, 2020.
Dagnone, G.; “Trust me if I say so: on the Direct Effect of the InfoSoc Directive (Reprobel, C-230/23)”, EU Law Live, 12/12/2024, https://eulawlive.com/ op-ed-trust-me-if-i-say-so-on-the-direct-effect-of-the-infosoc-directive-reprobel-c-230-23/
Lost in Translation: an Analysis of the COVID-19 Case Másdi (C-169/23)
Oskar J. Gstrein
During the COVID-19 pandemic, a public health emergency collided with the datafication of society. While the hasty introduction of phone-based tracing apps and digital COVID certificates allowed to draw some parallels to past public emergencies, legal frameworks regulating the unprecedented collection and use of personal data –most notably the 2016 EU General Data Protection Regulation 2016/679 (GDPR) – were heavily tested by the desire of policymakers to use highly sensitive health data to tackle the crisis.
On 28 November 2024, the Third Chamber of the Court of Justice delivered its judgment in Másdi (C-169/23). The case concerns the issuance of COVID-19 certificates in Hungary, based on the European Digital Covid Certificate (EUDCC) framework, and in particular the requirements for public authorities to disclose which personal data has been collected and used to generate such certificates. For the first time, the judges in Luxembourg had to interpret an important exception to a data controller’s obligation to provide information under Article 14(5)(c) of the GDPR. From the outset, this case seems relevant to understanding the nuances and technicalities of data processing in a pandemic. Looking beyond that, it may contain relevant information that speaks more broadly to the delicate exercise of reconciling national interests with higher European standards when it comes to the collection and processing of personal data in extraordinary times.
Facts of the Case
UC, a natural person, received from the Budapest Office a certificate of immunity confirming his vaccination against COVID-19, in accordance with the national Hungarian Decree No 60/2021 put in place to govern data collection and processing relating to COVID-19 data. Claiming that the practice of issuing the certificate was not in line with the European GDPR, on 30 April 2021 UC launched an administrative procedure based on Article 77(1) of the GDPR with the Nemzeti Adatvédelmi és Információszabadság Hatóság (National Authority for Data Protection and Freedom of Information), the Hungarian supervisory authority.
UC claimed, inter alia, that the Budapest authority had not drawn up and published any statement on the protection of personal data in relation to the issuing of immunity certificates, and that there was no information concerning the purpose and legal basis of the processing of this data, or the rights of data subjects and how those rights could be exercised. More specifically, the case revolves around the question of whether data subjects such as UC need to be provided with basic information, such as which data has been collected on them, an indication of the purposes of data processing, the categories of personal data used, or the basic contact information of the controller who uses the data. Such a notification typically must be provided in connection with the obligation
for controllers of the data collection and processing, established through Article 14 GDPR (Information to be provided where personal data have not been obtained from the data subject directly). UC asked the supervisory authority to order the Budapest Office to bring its data processing operations in line with the GDPR.
Procedure in Hungary
As a result of the complaint, the Budapest authority stated that the issuance of the immunity certificate was based on Article 2 of National Decree No. 60/2021, and that the legal basis for the processing of personal data was Article 6(1)(e) and Article 9(2)(i) of the GDPR. The issuing authority also stated that it had received the processed data from another government body. Therefore, it argued that under Article 14(5)(c) GDPR it was not required to provide information about the processing of that data directly to data subjects such as UC. Nevertheless, it produced the requested data protection statement and published it on its website.
On 15 November 2021, the Hungarian supervisory authority rejected UC’s complaint on the grounds that the Budapest Office was not obliged to provide information as it did not directly collect data. It reasoned that the GDPR and its provisions on establishing a legal basis (Article 6 GDPR) and collecting sensitive personal data (Article 9 GDPR) were not directly applicable. Rather, the data processing was based on a derogation under Article 14(5)(c) of the GDPR, in accordance with the national Hungarian Decree No. 60/2021. In addition, the supervisory authority emphasised that paragraph 3(1) of Decree 60/2021 expressly instructed the Budapest Office to collect the relevant data. The fact that the Budapest Office published information on data processing on its website, even though it was not legally obliged to do so, was good practice.
UC brought an administrative appeal against this decision before the Fővárosi Törvényszék (Budapest High Court), which annulled the decision and ordered the supervisory authority to launch a new procedure. In the reasoning of its judgment the Budapest High Court stated that the derogation laid down in Article 14(5)(c) GDPR was not applicable because some of the data in connection with the immunity certificates was not collected from another body but was instead generated by the controller that issued the certificate. Such data included the serial number of the immunity certificate, the period of validity of the certificate, the QR code incorporated into the certificate, and further features of the certificate.
Start of the Preliminary Procedure
The national supervisory authority brought an extraordinary appeal against the High Court decision, eventually prompting the Hungarian Kúria (Supreme Court) to stay the proceedings and refer the following three (summarised) questions to the Court of Justice in the context of a preliminary procedure:
• Must Article 14(5)(c) GDPR be interpreted as meaning that the exception does not apply to data generated by the controller, but rather only to data which the controller has obtained from another person?
• If Article 14(5)(c) GDPR is also applicable to data generated by the controller, must the right to lodge a complaint with a supervisory authority be interpreted as meaning that a natural person is entitled to request an examination of whether Member State law provides appropriate measures to protect the data subject’s legitimate interests?
• If the answer to the second question is in the affirmative, may Article 14(5)(c) GDPR be interpreted as meaning that the ‘appropriate measures’ referred to require the national legislature to transpose by means of legislation the measures relating to the security of data laid down in Article 32 GDPR?
Since the third question seems like an extension which is not necessarily following from the facts of the case or the legal framework, the Court of Justice combined its answer to questions two and three. In the following, the response from Luxembourg will be summarised.
First Question: Exception of the Controller to the Obligation to Provide Information to the Data Subject
At the heart of this procedure is the question of which information needs to be provided to the data subject, and which legal framework provides the reference for doing so. To come to an answer, the judges in Luxembourg needed to define the legal concept of ‘obtaining or disclosure’ mentioned in Article 14(5)(c) GDPR, which is no easy task since the 24 different legally binding language versions of the regulation differ significantly in their formulation and can be read surprisingly differently. As the judges note in margin number 41, the French language version refers to disclosing ‘information’, whereas other versions such as the Hungarian one refer to disclosing ‘data’, and while again other versions such as the German or English ones do not refer to ‘obtaining or disclosing’ at all.
Adopting a teleological interpretation method typical of EU law, the judges eventually chose to close the gap by interpreting this concept and the legal obligation of the controller as broadly as possible. Hence, they interpret Article 14(5)(c) GDPR as meaning that the exception to the obligation of the controller to provide personal data to the data subject concerns all personal data without distinction. This also includes data received, as well as data that has been generated by the controller itself based on the data received, as this is necessary in performing the tasks. In other words, it does not make a distinction based on whether the issuing authority only processes data received from other government bodies, or itself adds data inferred from what has been received. From the perspective of the data subject, this avoids a situation where it is not clear who is accountable for the data collection or processing.
Second and Third Questions: Breadth of Competency of the National Supervisory Authority
As regards the second and third questions, the judges first emphasise the importance of the individual right of a data subject to lodge a complaint with the supervisory authority. However, the question then arises, in a case where the GDPR is only the relevant legal framework in the broadest sense, to what extent a national supervisory authority tasked with the enforcement of data protection may review related national legislation, such as the Hungarian Decree No. 60/2021.
In response, the judges require a strengthening of the competences of the supervisory authority, especially considering the position of the data subject who would otherwise experience a weakening of the right to lodge an individual complaint as they could not actually challenge the national law and the resulting consequences. In
other words, the supervisory authority should be able to investigate associated legal acts using the exception of the GDPR in Article 14(5)(c) to be able to provide an effective legal remedy to a data subject. This also means that the national supervisory authority is entitled to scrutinise related national legal acts and apply the same European standards as they would when considering the obligations of the data controller under Article 14 GDPR. Hence, a national law adopted using the exception in Article 14(5)(c) GDPR needs to provide essentially equivalent protection for the rights of the individual data subject as laid down in Article 14(1), (2) and (4) GDPR.
Finally, briefly turning to question 3 and specifically Article 32 GDPR relating to technical/organisational measures enhancing the security of processing, the Third Chamber does not see a specific obligation of the supervisory authority to carefully scrutinise this aspect when investigating individual complaints of data subjects.
Lost in Translation – Twice!
The most interesting aspect about this case is that the judges in Luxembourg need to fill a gap in European legislation when it comes to interpreting and clarifying whether what needs to be disclosed to the data subject is ‘information’ or ‘data’. Here it becomes clear that the language versions of the respective regulatory provisions themselves are inconsistent, a nearly unavoidable problem for a legislative system operating in 24 equally authoritative and legally binding languages. Experienced observers of the development of European law will delightedly follow the deliberations in margin numbers 40-45 of this judgment, in a rare moment when the Court openly carries out its most basic task, namely literally interpreting European law teleologically to identify its purpose.
However, as technical as this case may be, it also has a larger institutional and political dimension. By extending the competence of national supervisory authorities to review related national legislation, the Court seems to be trying to fill a potential gap that could arise when using the GDPR’s exceptions to adopt national legislation. In the case at hand, this could have led to confusion about the origin of personal data and institutional accountability. The fact that the Court effectively requires an extension of the competences of supervisory authorities to related national legislation is an attempt to maintain high European standards to promote the rights of data subjects, even in times of exceptional circumstances.
Oskar J. Gstrein is an Associate Professor of ‘Human Dignity in the Digital Age’ at the interdisciplinary faculty Campus Fryslân, University of Groningen. He is also Programme Director BSc Data Science and Society, and ‘Data Autonomy’ Theme Coordinator at the Jantina Tammes School of Digital Society, Technology and AI.
Gstrein, O.J.; “Lost in Translation: an Analysis of the COVID-19 Case Másdi (C-169/23)”, EU Law Live, 09/12/2024, https://eulawlive.com/op-ed-lostin-translation-an-analysis-of-the-covid-19-case-masdi-c-169-23/
Exclusivity Rebates in EU Competition Law: The End of the Intel Saga (Case
Andriani Kalintiri
C-240/22 P, Commission v Intel)
On 24 October 2024 the Court of Justice ruled on the European Commission’s appeal (C-240/22 P) against the General Court’s renvoi judgment in Intel (T-286/09 RENV ). The ruling provides the final word on the prolonged dispute between the Commission and Intel concerning the latter’s exclusivity rebates and payments to original equipment manufacturers (OEMs). Its significance is twofold. First, the Court of Justice’s judgment reaffirms the shift towards a ‘more economic’ approach to exclusivity rebates under Article 102 TFEU. Second, it illustrates that the EU Courts will thoroughly scrutinise the Commission’s reasoning and evidence, notwithstanding the latter’s margin of appreciation with respect to complex economic assessments.
Background
In its decision of 13 May 2009, the Commission concluded that Intel’s exclusivity rebates and payments to OEMs were part of an overall strategy to foreclose its rival, ADM, from the market for x86 CPU microprocessors and fined Intel for having abused its dominant position. Relying on Hoffmann-La Roche (85/76) the Commission held that Intel’s exclusivity rebates were illegal by their very nature. Nevertheless, the authority also conducted an ‘As Efficient Competitor’ (AEC) test to demonstrate that Intel’s exclusivity rebates were capable of foreclosing competition. Intel challenged the Commission’s AEC analysis, but the General Court refused to consider its related arguments, on the basis that exclusivity rebates are prima facie illegal and the Commission is ‘not (…) required to demonstrate their foreclosure capability on a case-by-case basis’ and certainly not required to do so ‘by means of an AEC test’ ( T-286/09, paras. 143-166). However, the Grand Chamber of the Court of Justice set the ruling of the General Court aside and ‘clarified’ Hoffmann-La Roche to the effect that ‘where the undertaking concerned submits, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, of producing the alleged foreclosure effects’, the Commission is required to analyse the extent of the undertaking’s dominant position on the relevant market, the share of the market covered by the challenged practice, the conditions and arrangements for granting the rebates in question, their duration and their amount, and the possible existence of a strategy aiming to exclude competitors that are at least as efficient as the dominant undertaking from the market (C-413/14 P, paras. 138139). Since Intel had argued that its conduct was not capable of restricting competition, the General Court should have considered its criticisms of the Commission’s AEC analysis and findings. Hearing Intel’s action for annulment en renvoi ( T-286/09 RENV ), the General Court concluded that the Commission’s AEC test was vitiated by multiple errors and that the authority had failed to properly or correctly consider the market coverage of Intel’s rebates and their duration. Consequently, the General Court annulled the Commission’s decision in its entirety as regards Intel’s exclusivity rebates.
Analysis
In its appeal against the General Court’s renvoi judgment, the Commission raised multiple complaints. First, the Commission argued that the General Court ruled ultra petita by considering arguments by Intel that had not formed part of the initial action for annulment and misinterpreted and misapplied the capability to foreclose competition requirement by considering only two of the five criteria identified by the Court of Justice. Second, the Commission alleged a violation of its rights of defence, insofar as the General Court took into account new evidence produced by Intel concerning the Commission’s AEC analysis but refused to consider the authority’s rebuttals of that evidence. Third, the Commission claimed that the General Court made multiple errors in reviewing its AEC analysis and findings with respect to three OEMs, i.e., Dell, HP and Lenovo. Finally, it claimed that the General Court incorrectly assessed the consequences to be drawn from the errors found in the AEC test. The Court of Justice dismissed all the Commission’s pleas. In so doing, it made important statements on the assessment of exclusivity rebates under Article 102 TFEU and the scope and intensity of the scrutiny exercised by the General Court.
1. The Assessment of Exclusivity Rebates under Article 102 TFEU
Indeed, the Court of Justice recalled the key principles for determining the lawfulness of exclusivity rebates by a dominant firm, and in so doing, it reaffirmed the move towards a more economic approach to their assessment. As the Court emphasised, ‘not every exclusionary effect is necessarily detrimental to competition’; rather, Article 102 TFEU prohibits a dominant firm ‘from engaging in practices, including pricing practices, which have an exclusionary effect on competitors considered to be as efficient as the dominant undertaking itself’ (paras. 175, 177). Two aspects of the judgment are particularly noteworthy in this regard. First, in its renvoi judgment, the General Court held that exclusivity rebates ‘may be assumed to have restrictive effects on competition’, although ‘what is involved is (…) a mere presumption and not a per se infringement (…)’ (paras. 124, 522). The Court of Justice however avoided any reference to the existence of a ‘presumption’ and merely repeated that where a dominant firm submits, during the administrative procedure, on the basis of supporting evidence, that its rebate scheme was not capable of foreclosing competition, the Commission is required to demonstrate so, by considering various criteria (para. 180). Second, in its renvoi judgment, the General Court noted that the Commission does not necessarily have to carry out an AEC test to examine the foreclosure capability of a rebate system, although if it does carry out such a test, it is one of the factors which must be taken into account (para. 126). While the Court of Justice did not go as far as suggesting that an AEC test is always required, it emphasised that ‘the capability of [exclusivity] rebates to foreclose a competitor as efficient as the dominant undertaking (…) must be assessed, as a general rule, using the AEC test’ (para. 180) and provided guidance on how the AEC test is to be carried out.
2. The Scope and Intensity of Judicial Review
The Court of Justice also considered the scope and intensity of the judicial review to which Commission decisions are subject. In this context, it reiterated that the General Court cannot alter the constituent elements of the
infringement decision by substituting its own reasoning for that of the Commission, as part of its legality control. Therefore, contrary to the Commission’s complaint, the General Court did not err by not examining whether the authority’s decision contained ‘material that makes it possible to construct a line of reasoning that demonstrates the capability of the contested rebates to have an anticompetitive foreclosure effect’ (paras. 113, 138) or whether such capability could be established ‘on factors different from those on which the Commission had relied’ (para. 339). The Court of Justice also clarified the Commission’s margin of appreciation with respect to complex economic assessments. Among others, the General Court had found errors in the identified contestable share in the Commission’s AEC analysis with respect to Dell, the chosen reference period with respect to HP, and the method used to assess the non-cash advantages to Lenovo. The Commission argued that the AEC test ‘is, in essence, an evaluative exercise which (…) relies on assumptions for which, by definition there is no certain and definitive answer, only a best or reasonable assessment’. Accordingly, ‘it is not sufficient to cast doubt on the assessment made by the Commission at the end of such a test or, a fortiori, merely to suggest that another result would be conceivable’ for its decision to be annulled (para. 170). Rather, given ‘the methodological choices required by an AEC test, only ‘manifest’ errors of assessment could lead to the annulment of a decision based on such a test’ (paras. 251, 296). The Court of Justice however sided with the General Court, noting that reasonable doubt ‘may arise due to calculation errors or due to selective or incomplete consideration of evidence’, where the identified shortcoming may ‘alter the result of the [AEC] test, changing it from negative or positive’ (paras. 204205); that where the AEC test is the only evidence used by the Commission to support the finding that rebates are capable of foreclosing competition, it must cover the whole infringement period (para. 268); and that the methods chosen by the Commission to conduct the AEC test must be consistent with the fundamental assumption of an ‘as efficient’ rival underpinning this test (para. 314).
Conclusion
The Court of Justice’s final word in the Intel saga comes at a critical time: while the Commission is in the process of adopting Guidelines on Article 102 TFEU – not least because their draft version, as published on 1 August 2024, endorses a presumption of harm with respect to exclusivity rebates (para. 60), which may be difficult to reconcile with the Court of Justice’s judgment. Regardless, the message for the Commission is loud and clear: complex economic assessments or not, the authority must take undertakings’ arguments and evidence seriously and must ensure that its reasoning is consistent, thorough, comprehensive and adequately supported.
Andriani Kalintiri is Senior Lecturer in Competition Law at King’s College London and member of the editorial board of the Journal of European Competition Law & Practice.
Kalintiri, A.; “Exclusivity Rebates in EU Competition Law: The End of the Intel Saga (Case C-240/22 P, Commission v Intel)”, EU LawLive, 13/12/2024, https://eulawlive.com/op-ed-exclusivity-rebates-in-eu-competition-law-the-end-of-the-intel-saga-case-c-240-22-p-commission-v-intel/
Can
the
CDSM Directive’s
TDM Exceptions solve CopyrightRelated Issues in Generative AI, or is there a Need for Technical Solutions?
Maryna Manteghi
Introduction
Generative artificial intelligence (GenAI) models have gained popularity for their incredible ability to generate different types of data promptly and effortlessly. These systems must be trained on huge amounts of existing data to produce a high-quality outcome. In particular, the models ‘learn’ from the patterns, insights, or correlations extracted from such data by means of text and data mining (TDM). However, the training datasets may contain creative and original data protected by copyright (e.g., photos, books, music, etc.). In this sense, if such data is copied during the TDM process without authorisation, it may infringe copyright holders’ exclusive right to reproduction under Art. 2 of the InfoSoc Directive. AI developers must obtain permission from rightsholders or rely on statutory exceptions or limitations to avoid infringement. The first option is problematic, as the process would require significant time, financial resources, and mental effort to identify the ownership of huge amounts of training data and reach licensing agreements (see Quintais). In this sense, providers of GenAI models may find a safe harbour under the specific TDM exceptions outlined in Arts. 3 and 4 of the CDSM Directive or consider technical solutions, such as synthetic data training, to mitigate copyright-related concerns in AI training. This post speculates how AI developers may leverage these two solutions while training their systems, highlighting potential risks and challenges.
Legal Approach to the Conflict
In the EU, TDM is regulated under two specific mandatory exceptions provided under Arts. 3 and 4 of the CDSM Directive. The former exception limits the scope of beneficiaries to research organisations and cultural heritage institutions using TDM to conduct scientific research on data to which they have lawful access. Therefore, the provision would not apply to providers of GenAI models, as they are typically private actors pursuing commercial interests (see Manteghi, p. 674 and Margoni and Kretschmer, p. 688). Even though the latter provision allows any entity (both commercial and non-commercial) to perform TDM on lawfully accessible works for any purpose, it has been diluted by a so-called ‘opt-out’ mechanism, which enables rightsholders to reserve the use of their works for TDM. The mechanism can be implemented through machine-readable means, including metadata and terms and conditions of a website or service, or through contractual agreements (Recital 18 of the CDSM Directive). This provision can create a twofold problem for stakeholders. First, providers of GenAI models would be required to pay twice to be able to train their systems lawfully: initially to obtain lawful access to data and subsequently to
mine or analyse it (see Manteghi). This might particularly affect small tech companies with constrained budgets and limited resources in their endeavour to develop AI-powered systems and applications (see Manteghi, p.675). Second, it is still unclear how the ‘opt-out’ mechanism will work in practice. Without the harmonised ‘opt-out’ mechanism, rightsholders would control the use of their works for TDM through available model-specific ‘optout’, requiring the use of the form specified by each AI company, which may or may not align with the statutory concept of the reservation right (see Keller). For instance, they can employ robots.txt files, a simple and wellknown solution, or rely on more modern options such as SPRAWNINGai.txt or HaveIBeenTrained websites (for more on this, see, e.g., Mezei). However, it is not clear how rightsholders can determine whether their works have been used for training; checking each platform could be burdensome and impractical. Even though the adoption of the standardised ‘opt-out’ mechanism would provide more legal certainty for all stakeholders, it could not alleviate the rightsholders-oriented nature of the exception (Manteghi, p.679). Rightsholders should not impede the AI developer’s right to access lawfully obtained data and extract ideas and facts embedded in such materials (idea-expression dichotomy), as the purpose of training is to generate new knowledge rather than make exact copies of protected content (Manteghi, pp. 679-680). Against this background, a broader ‘commercial’ TDM exception not including the reservation right may be needed to increase access to information and facilitate AI innovation within the digital single market.
Technical Approach to the Conflict
AI developers may turn to technical solutions to mitigate the risk of legal issues in GenAI training. One possibility is to train their systems on synthetic data only (Manteghi, p.667). IT experts define synthetic data as ‘artificially annotated information generated by computer algorithms or simulations’ (see, e.g., Yingzhou Lu et al., p. 1). In simple terms, synthetic data is ‘fake’ data created by a computer that mimics real data. The use of synthetic data is a cheaper, easier, and quicker way to generate large and highly variable training datasets, especially when actual data is unavailable or scarce (Alemohammad et al.; Wood et al.). Synthetic data is an artificial ‘product’ that only mimics or simulates real-world data with no direct link to actual resources (see explanation on Turing).
However, it is hard to claim that this approach can fully address copyright-related concerns in GenAI training. If AI developers use synthetic data created from existing models, simulations, or data analysts’ background knowledge, no copyright infringement may occur. However, if they choose to rely on synthetic data generated from real data to create more sophisticated models, the rightsholders’ permission may be required (Manteghi, p. 21). Once generated, synthetic data could be used to train an unlimited number of AI systems without seeking further authorisation from rightsholders or ‘protection’ under the CDSM Directive’s TDM exceptions, as such data is not copyrighted (Lee, p.46). However, without the availability of actual datasets, it would be impossible to fully evaluate the performance of AI models and ensure a high level of utility and fidelity of the system. Moreover, the quality, reliability and diversity of GenAI models could degrade over generations if training datasets consist only of synthetic data with no fresh real-world data (see Yuxi Ma et al.).
Conclusion
To sum up, while the CDSM Directive’s ‘commercial’ TDM exception and synthetic data generation cannot completely resolve the conflict of interests in GenAI training, they can alleviate copyright-related concerns to some extent. This could increase access to information and thus facilitate new advances in the EU AI sector. However, despite their potential, these approaches need to be refined to address the needs of both copyright holders and providers of GenAI models.
Manteghi, M. (2024). Can text and data mining exceptions and synthetic data training mitigate copyright-related concerns in generative AI? Law, Innovation and Technology, 16(2), 663–686. https://doi.org/10.1080/17579961.2024.2392928
Maryna Manteghi is a doctoral researcher in the Faculty of Law at the University of Turku, Finland.
Manteghi, M.; “Can the CDSM Directive’s TDM Exceptions solve Copyright-Related Issues in Generative AI, or is there a Need for Technical Solutions?”, EU Law Live, 12/12/2024, https://eulawlive.com/op-ed-can-the-cdsm-directives-tdm-exceptions-solve-copyright-related-issues-in-generative-ai-or-isthere-a-need-for-technical-solutions/
Defining
Obligations
contained in Democratic Principles: Member States cannot exclude EU Citizens from Political Party Membership (Cases C-814/21, C-808/21)
Nora Vissers
Recently, the Court of Justice ruled on the infringement cases against Poland (C-814/21) and the Czech Republic (C-808/21) concerning national eligibility requirements for political party membership. In short, the Court determined that denying Union citizens living in another Member State the possibility to join political parties violates EU law (for a brief analysis of the judgment, see here). Beneath the surface of this – seemingly straightforward – conclusion lies a much deeper development of EU democratic principles.
These judgments have been a long time coming, as the Commission opened proceedings against seven Member States back in 2013 (see the EU Citizenship Report). Due to the lack of progress in Poland and the Czech Republic, the Commission referred these two cases to the Court. These rulings were handed down on the same day as the hearing for the infringement procedure against Hungary in the anti-LGBTI+ law case (C-769/22). When it comes down to it, these cases all revolve around the same topic: the protection of EU values.
More than a Citizenship Case?
These procedures were prompted by Polish and Czech national legislation limiting political party membership to nationals. As these laws prevent non-nationals from joining political parties, the Commission argued that they violate EU citizens’ right of passive suffrage as guaranteed by Article 22 TFEU. This provision outlines that, for the European Parliament and municipal elections, EU citizens living in another Member State should be able to vote and stand for election ‘under the same conditions as nationals of that State’. According to the Commission, excluding mobile EU citizens from political party membership undermines their chances of actually being elected and thus infringes their EU citizenship rights.
Advocate General de la Tour sided with the Commission in his Opinions published in January. Not only did AG de la Tour agree that these cases concerned citizenship rights, he extended the argumentation to include the relevant Charter rights, Articles 39 and 40, as well as Article 10 TEU. This link to Article 10 TEU, which articulates the principle of representative democracy, placed these cases in the broader narrative of the protection of EU values Although not doing so in a very comprehensive manner (see Krappitz’s critique here), the AG framed these cases as Article 2 TEU cases. Thereby indicating that they should not just be seen as regular citizenship cases, but rather as cases that concern the value of democracy and perhaps provide an opportunity for the Court to develop the principles that give expression to this value.
Link to the Value of Democracy
In its judgments, the Court agrees with the Commission’s claim and the AG’s stance that the Polish and Czech national legislation on political party membership infringes EU law. Given that these procedures against Poland and the Czech Republic concern the same topic, the judgments follow the same structure. After addressing the admissibility of the case and presenting the arguments of the parties, the Court assesses the merits of the infringement action. It starts off by determining the scope of Article 22 TFEU. It then goes on to decide if the national legislation establishes a prohibited difference in treatment. Finally, the judgment tackles the Member States’ arguments based on national identity.
In their argumentation, the Member States claim that EU citizens are still able to stand for election without political party membership. The Czech Republic highlights the prevalence and success of candidates without political affiliation. In both Member States, political parties are free to also include non-members on their electoral lists. Therefore, strictly speaking, their right to stand for election for EP and municipal elections is the same as nationals. However, the Court determines that Article 22 TFEU applies to ‘any national measure giving rise to a difference in treatment liable to undermine the effective exercise of those rights’ (C-808/21, para. 96; C-814/21, para. 95). It establishes that Article 22 TFEU does not only entail the formal right to vote and stand for election, but more broadly the ‘right to participate in the democratic electoral process of that Member State’ (C-808/21, para. 123; C-814/21, para. 121). The Court states that a restrictive reading would conflict with the fundamental status of Union citizenship.
In determining the scope of Article 22 TFEU, the Court provides an insight as to the interpretation of the value of democracy. It links the right to vote and stand for election, as found in Article 22 TFEU, with the principle of representative democracy. This principle is found in Article 10(1) TEU, which states that the ‘functioning of the Union shall be founded on representative democracy.’ The Court adds that, within a system of representative democracy, political parties play an essential role in facilitating the right to stand for election. In turn, Article 10(1) TEU gives ‘concrete expression to democracy as a value’ under Article 2 TEU (C-808/21, para. 114; C-814/21, para. 112). These interconnections delineated by the Court convey some of the more concrete substance of the –rather abstract – value of democracy.
Based on this broad reading, the Court concludes that the national legislation restricting political party membership to non-nationals infringes EU law.
National Identity is Not a Justification
Poland and the Czech Republic argue that their legislation serves to protect the national political and constitutional system. Therefore, this national legislation forms part of national constitutional identity, which has to be respected by the EU, as stated in Article 4(2) TEU. They raise the issue that, by allowing all Union citizens residing in their State to become members of political parties, these non-nationals are able to get involved in matters that do not concern municipal or EP elections – such as national parliamentary and presidential elections.
In response to the national identity claim, the Court again highlights that these cases concern Union values. Although the Court recognises that ‘the organisation of national political life’ (C-808/21, para. 154; C-814/21, para. 153) is part of national constitutional identity, it states that this is not a justification exempting Member States from obligations that derive from EU values found in Article 2 TEU. Recalling its judgments in the conditionality cases brought by Hungary and Poland (see here and here), it reiterates that these values are an ‘integral part of the very identity of the European Union’ and can entail ‘legally binding obligations for the Member States’ (C-808/21, para. 160; C-814/21, para. 157). Thus, the obligation for Member States not to impose legislation barring EU citizens from political party membership does not only flow from Article 22 TFEU, but can also be derived from Article 2 TEU.
The Court nevertheless leaves some room for the Member States to limit the membership rights of non-nationals. It suggests that the Member States could adopt rules to prohibit non-nationals from decision-making within a political party when it concerns candidate nomination for national elections. The Court does not address the possibility of limiting other rights for non-national party members, such as deciding on the political party platform for national elections.
Implications for Future Cases
These cases have come at a time when the European Commission is also placing emphasis on the value of democracy. Protecting democracy, especially within the Member States, is one of priorities for the current Commission as set out by von der Leyen in her Political Guidelines. The priority given to this topic is also reflected by the expansion of the Justice portfolio to include democracy, assigned to Michael McGrath. Perhaps this attention could lead to further scrutiny of Member States’ adherence to the value of democracy.
The judgments in these two cases can be seen as a stepping stone for other (potential) infringement procedures concerning democratic principles, such as the currently pending case on Hungary’s Defence of Sovereignty Law. In October, the Commission decided to refer the proceedings to the CJEU. In this case, the Court will have to rule on a claimed violation of the ‘democratic values of the Union’ (as stated in the Press Release on the letter of formal notice). Although it remains unclear from the Commission’s communication, it seems possible that one of the infringement claims rests solely on a combined reading of Articles 2 and 10 TEU (as was the case for a different procedure started against Poland, see here). Based on a broad interpretation of the Court’s rulings against Poland and the Czech Republic, Schuler argues that Articles 2 and 10 TEU could allow for the enforcement of democracy in a similar manner as is done for the Rule of Law.
A Path Without a Clear End?
By making one obligation that stems from the value of democracy concrete, these cases actually trigger further questions. For instance – as the Court places a lot of weight on the role of political parties – do Member States also have a positive obligation to guarantee that EU citizens are in fact able to join political parties? Thus, should they take active measures to ensure political parties do not hinder non-nationals from becoming members?
Moreover, one could argue that ‘participation in the democratic electoral processes’ means that political party members should be able to exercise their rights effectively. Does this entail that Member States are obliged to regulate political parties, and if so, to what extent? Should they ensure that the internal structure of political parties is democratic?
This one aspect of the principle of representative democracy already has many facets. Other aspects, such as the right to vote and the electoral process, are also multifaceted. At this point, it is difficult to determine how far the Court’s jurisdiction reaches in cases concerning democratic principles. It seems that these judgments might serve a stepping stone in a path with no clear end in sight.
Nora Vissers is a PhD researcher at Maastricht University’s Faculty of Law
Vissers, N.; “Defining Obligations contained in Democratic Principles: member states cannot exclude EU Citizens from Political Party Membership (Cases C-814/21, C-808/21)”, EU Law Live, 10/12/2024, https://eulawlive.com/op-ed-defining-obligations-contained-in-democratic-principles-member-statescannot-exclude-eu-citizens-from-political-party-membership-cases-c-814-21-c-808-21/
Harley Davidson: The Court of Justice’s Clarification of the economic Justification Test concerning Retaliatory Duties
Trajan Shipley
On 21 November 2024, the Court of Justice of the EU (‘CJEU’) delivered its judgment in Harley Davidson (C297/23 P), a dispute concerning the application of retaliatory customs duties imposed by the EU on the U.S. amid trade tensions during the first Trump Administration.
At its core, the case revolved around the question of whether Harley Davidson’s partial relocation of its motorcycle production facilities from the U.S. to Thailand was ‘economically justified’. The response to this question determined whether its motorcycles were to be deemed of Thai origin, thereby avoiding the application of duties.
This Op-Ed examines, in particular, the Court’s analysis regarding the economic justification test, a legal requirement which examines the economic rationale of a given operation to determine whether it is subject to commercial policy measures by reason of the nature of the goods or of its origin.
Background and facts of the case
Harley Davisdon is a U.S. manufacturer of motorcycles. In 2018, U.S. President Donald Trump introduced tariffs on imports of EU steel (25%) and aluminium (10%) on grounds of national security under Section 232 of the 1962 Trade Expansion Act. Taking the view that such tariffs were unlawful, the EU responded by enacting retaliatory customs duties on imports of certain products (Regulation 2018/886). As a consequence, certain motorcycles manufactured by Harley Davidson became liable to an additional 25% customs duty when arriving at the EU border.
In view of this new scenario, Harley Davidson decided to relocate part of its production of EU-destined motorcycles to its factory in Thailand. It informed of these plans in a public 8-K Form filed with the U.S. Securities and Exchange Commission, where it stated that it planned “to shift production of motorcycles for EU destinations from the U.S. to its international facilities to avoid the tariff burden”. Belgian customs authorities initially took the view that the motorcycles at issue were to be considered of Thai origin in two binding origin information (‘BOI’) decisions. The European Commission (‘Commission’), however, disagreed as it had doubts that the economic justification test was met in view of the information submitted by Harley Davidson in the said form, and requested Belgian authorities to revoke the BOIs via Implementing Decision 2021/563
The General Court rejected a challenge to the Commission’s decision brought by Harley Davidson (Case T-324/21). It did so by reference to Article 33 of Delegated Regulation 2015/2446 (‘UCC-DA’), a provision which specifies when processing or working operations are deemed not economically justified for the purpose of establishing the
origin of a product under Article 60(2) of the Union Customs Code (‘UCC’). In this sense, Article 33 specifies that a processing or working operation carried out in another country or territory is deemed not economically justified where the purpose of such operation is to avoid the application of customs duties. The General Court interpreted this provision as meaning that a processing or working operation will not be economically justified where its ‘principal or dominant purpose’ is to avoid the applicable customs duties. Ultimately, on appeal, the Court of Justice has now confirmed that this approach was correct.
What economic justification test?
The resort to an economic justification test is a common requirement within the field of commercial policy measures. However, the precise meaning and applicability of this test is by no means uniform, and in fact different types of economic justification tests may apply to different commercial policy measures.
For instance, the lack of economic justification of an operation can be a relevant criterion to extend the application of commercial policy measures to goods with a different origin or different characteristics. This may occur in the case of circumvention of anti-dumping and countervailing duties under Articles 13 and 23 of the basic AntiDumping (2016/1036) and Anti-Subsidy (2016/1037) regulations. These provisions require, in order to meet the definition of circumvention, the existence of an operation for which there is insufficient due cause or economic justification other than the imposition of a duty (among other conditions). The test to determine whether there is an economic justification for that operation takes the form of a cost-benefit analysis which may examine a wide array of factors, such as the existence of a quantifiable benefit, the degree of added value, or the volume of output of that operation.
However, as with the case at hand, the lack of economic justification of an operation can also be a relevant criterion in determining the true origin of a product in relation to applicable commercial policy measures. In this sense, Article 60(2) UCC establishes a rule of origin according to which goods produced in more than one country are deemed to originate in the one where they underwent their last substantial and economically justified processing or working. Recourse to Article 33 UCC-DA becomes necessary in order to determine the economic rationale of that operation. According to Article 33, if based on facts available, the purpose of that operation was to avoid the application of commercial policy measures (i.e. customs duties), that operation is deemed not to be economically justified. Indeed, as noted in the General Court’s judgment, Article 33 UCC-DA prevents the goods covered by the measures from acquiring a new origin through an operation which has the purpose of avoiding their application.
In this sense, the Harley Davidson judgment clarifies the specific economic justification test applicable under Article 33 UCC-DA, and to a certain extent, its interplay with other similar tests in the field of commercial policy measures. It also carries important practical implications for companies importing goods into the EU wishing to adapt their global operations to an environment of increasing trade tensions which may ultimately result in the application of additional duties.
Legal test: principal or dominant purpose based on facts available
The Court of Justice’s judgment clarifies that the relevant test in applying Article 33 UCC-DA is the ‘principal or dominant purpose’ of the operation at issue. This is an important clarification as that wording does not appear in the provision nor its recitals. Therefore, where the principal or dominant purpose of an operation is to avoid the application of measures, it will be deemed not to be economically justified. The determination of the principal or dominant purpose must be carried on the basis of facts available, which must constitute evidence of an objective nature. While this was not clarified by the Court, the practical application of the test would seemingly play out in a binary fashion, leading to the conclusion that the principal or dominant purpose of the operation at issue either was or was not the avoidance of commercial policy measures.
The Court’s approach stands in contrast to that of Advocate General Kokott, who had proposed a different interpretation of Article 33 UCC-DA. Her approach was premised on the fact that the avoidance of customs duties, as with tax liability optimization, may be economically justified as it may result in important competitive advantages. She therefore refused to interpret Article 33 UCC-DA as equating the avoidance of commercial policy measures with their lack of economic justification. Her reasoning was also premised on the fact that retaliatory customs duties are intended to burden the targeted country, not its individual producers. In this regard, she concluded that relocation operations to other countries are actually consistent with the objectives of a retaliatory duty and may therefore be economically justified as a matter of principle. In her view, since Article 33 UCC-DA cannot be interpreted as a prohibition of avoidance of customs duties by automatically equating such avoidance with a lack of economic justification (in which case she argued that such provision would be invalid), a relocation operation would only be deemed not economically justified where its purpose is to avoid the measures by ‘manipulating the origin’ of the product.
The Court rejected to follow this interpretation largely for the sake of the effectiveness of Article 33 UCC-DA. In this sense, it clarified that the logic for the ‘principal or dominant purpose’ test is to prevent justifying the economic rationale of the relocation operations by other secondary purposes in addition to the avoidance of commercial policy measures. Equally, it rejected constraining the non-economic justification of an operation under Article 33 UCC-DA to situations of origin manipulation, suggesting (unconvincingly) that manipulations of origin may cover a wide range of actions with a different purpose than avoiding the application of commercial policy measures. Moreover, it also clarified that it is possible to establish a presumption (on the basis of available facts) that the ‘principal or dominant purpose’ of a relocation operation is not economically justified, shifting the burden of proof to the economic operator to rebut that presumption on the basis of objective evidence at the time when the relocation decision was taken.
Another clarification concerns the interplay between the economic justification test in Article 33 UCC-DA and that under Article 13 of the basic Anti-Dumping Regulation. The Court clarified that both tests are different and that they should not be used to aid in their respective interpretations. This inevitably narrows the scope of the test under Article 33 UCC-DA, which contrary to the Court’s view, may increase its subjective nature, since in
principle the only element to assess whether a relocation operation is economically justified will be the operator’s intent (i.e. its ‘principal or dominant purpose’). Even if such determination is to be conducted based on objective evidentiary elements, only evidence concerning the intent behind the relocation operation would in principle be relevant. This may leave out the possibility to examine objective evidence on possible efficiency gains or other cost-benefit analyses (which are regularly considered in the economic justification test for circumvention of antidumping and countervailing duties) so long as they are not related to the purpose of the economic operator’s relocation operation.
Conclusion
The Court’s clarification of the legal test to determine the existence of economic rationale behind a relocation operation increases the importance of objective factual evidence on the stated reasons by which a company (otherwise facing the prospects of the application of commercial policy measures) decides to undertake a relocation operation. Unfortunately for Harley Davidson, its 8-K Form was too explicit in stating its goal of minimizing its tariff burden by pursuing a partial relocation operation.
Therefore, companies wishing to conduct similar relocation operations will likely become more cautious when it comes to recording evidence relating to the purpose behind such operation, regardless of whether that purpose is actually to minimize their tariff burden or not. This may lead to situations where the available evidence to determine the ‘principal or dominant purpose’ of the relocation operation will not be as clear or helpful to reach that determination, to the detriment of the practical application of the test clarified by the Court. In turn, this may result in additional difficulties to rebut a presumption that a relocation operation is not economically justified. According to the Court, such presumption may be validly established where there is a mere coincidence in time between the relocation operation and the introduction of commercial policy measures.
The question that arises then is what type of evidence may be considered in order to justify the economic rationale of the operation, especially considering that the burden of proof is shifted to the operator concerned. In principle, the Court has only limited the temporal scope of this evidence, which must relate, at the latest, to the time where the decision to relocate was taken. However, the fact that the applicable test focuses only on the principal or dominant purpose behind that operation may impede considering objective information that, without relating to such a purpose or to any element of intent whatsoever, could otherwise justify its economic rationale beyond the avoidance of the application of measures.
Trajan Shipley is an associate in an international law firm in Brussels, Belgium. His practice focuses on EU and international trade and investment law.
Shipley, T.; “Harley Davidson: The Court of Justice’s Clarification of the economic Justification Test concerning Retaliatory Duties”, EU Law Live, 11/12/2024, https://eulawlive.com/op-ed-harley-davidson-the-court-of-justices-clarification-of-the-economic-justification-test-concerning-retaliatoryduties/
Article 19(1) TEU goes deeper: the Independence of European Judges begins within their own Courts (S, Case C-197/23)
Maciej Taborowski & Jakub Kocjan
In C-197/23 S. (Modification de la formation de jugement), the Court of Justice once again grappled with the rule of law crisis in Poland and demonstrated new possibilities for omitting the application of so-called ‘muzzle laws’ restricting the scope of judicial review concerning the composition of a court. The new consequence that can be deduced from the judgment is the broadening of the scope of Article 19(1) TEU, this time going deeper into the daily work of common courts. This case referred to the allocation of cases in common courts and the potential weaponisation of special circumstances to affect judgments. At the same time, however, an equally important systemic problem pertaining to so-called ‘neo-judges’ in common courts has been ignored.
Since the landmark judgment in ASJP (C-64/16), concerning the remuneration of judges, the Court of Justice has consequently broadened the interpretation of the scope of Article 19(1) TEU. It then added further substantial elements regarding the professional career of a judge (such as the extension of a judge’s term of office dealt with in C-619/18, the participation of self-governing judicial bodies in the procedure for the appointment of judges, dealt with in C-181/21, or the arbitrary secondment of judges by the Minister of Justice dealt with in Joined Cases C-748/19 and C-754/19) or disciplinary proceedings (such as disciplinary rules against judges, as dealt with in C-791/19, as well as disciplinary measures, dealt with in C-487/19, or the qualification of what amounts to ‘disciplinary misconduct’ as a result of examining compliance with the Union’s requirements for an independent and impartial court, as dealt with in C-204/21). Thanks to these jurisprudential developments, the scope of application of the principle of effective judicial protection has achieved an entirely new level and the catalogue of factors impacting judicial independence now seems to be quite open.
In C-197/23 S., the Court clearly observed that the independence of judges must be protected not only from external factors, such as politicians, but also from influences within the court.
The case started when the applicant, Company S, brought a commercial action against Company C, before the Warsaw District Court. The case was allocated, through the software system for the random assignment of cases, to Judge E.T. However, on the day of scheduled hearing, Judge E.T. was absent due to requested leave. Instead, the case was heard by Judge J.K., who was on duty that day. The District Court of Warsaw, with Judge J.K. presiding as a single judge, issued a decision dismissing the claim of Company S.
On appeal, Company S argued that the proceedings before the first-instance court were invalid under Article 379(4) of the Code of Civil Procedure (CCP), due to being delivered by a judge excluded by the operation of law. This claim was based on an alleged violation of the principle of the immutability of the adjudicating panel. The
Court of Appeal in Warsaw stayed proceedings and made a preliminary reference to the Court of Justice, asking whether the method of composing the panel breached the requirement of an impartial court established by law according to Article 19(1) TEU, as well as whether the referring court may disapply Article 55(4) of the Law on the organisation of ordinary courts, which excludes the application of Article 379(4) CCP in such circumstances. The referring court presented the procedural rules under consideration as entailing a risk of systemic violation and political interference in the future.
The national court presented a detailed description of such a danger, considering the possibility of an improper intent within the court to change the composition of the adjudicating bench, contrary to the result of the random selection by the software system for case-allocation. The possibility of replacing a previously-selected judge on minor grounds (such as requested leave on the day of hearing) ‘could lead to the allocation of a relatively large number of cases being transferred from one judge to another’ (C-197/23, para. 25). The referring court goes even further in its theoretical considerations: ‘the composition of a single-judge formation may be deliberately changed in sensitive cases by a procedure consisting, for the judge to whom a case was randomly allocated initially, in fixing a hearing for a date on which he or she will be on leave on his or her request, the judge’s absence on the date of the hearing being used to cause that judge to be replaced by the judge (…) whose name may be known in advance’ (C-197/23, para. 26).
The Court of Justice mainly referred to its established case-law, reminding that independence of a court has two aspects: external and internal (C-197/23, para. 60), this meaning that judges should be protected not only from political pressure, but also ‘from undue influences from within the court concerned’ (C-197/23, para. 61). This concerns not only direct influence but also ‘types of influence which are more indirect and which are liable to have an effect on the court decisions’ (C-197/23, para. 62). Further, the Court of Justice understands the term ‘tribunal established by law’ broadly, not only as the institution itself, but also covering the rules deciding which judges sit on an adjudicating panel. As it is stated in the judgment, a ‘“tribunal established by law”, (….) covers not only the legal basis for the very existence of a tribunal, but also the composition of the bench in each case and any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular’ (C-197/23, para. 64).
Each potential irregularity needs to be the subject of judicial control in order to make effective judicial protection possible. This demand is directly violated by the relevant article of Polish Law on the organisation of ordinary courts: ‘Effective judicial protection cannot be guaranteed if, (…) compliance with the rules conferring on a court the status of an “independent and impartial tribunal previously established by law” could not be the subject of judicial review and a possible penalty in the event of non-compliance, otherwise those rules could be disregarded without that entailing any consequence’ (C-197/23, para. 66).
However, equally significant is what is absent from the judgment: neither the Commission nor the other participants in the proceedings, and therefore also the Court of Justice itself, referred to the fact that a judge on the panel making the preliminary reference, namely Przemysław Feliga, is a so-called ‘neo-judge’, i.e. a judge nominated after 2018 with the participation of the new National Council of the Judiciary (NCJ), which is composed in a
way which has not provided sufficient guarantees of independence from the legislative and executive branches of government (C-718/21, para. 30).
That circumstance was not referred to, particularly by the Commission, even though previously the Court of Justice in most cases has rejected referrals made by neo-judges in the Polish Supreme Court (as happened in e.g. C-718/21, C-720/21, C-43/22, C-390/23 or C-326/23). In particular, the Strasbourg case law on this matter has been ignored, which may lead to inconsistencies in the jurisprudence of the Luxembourg and Strasbourg courts, with the latter clearly stating in Wałęsa v. Poland (application no. 50849/21) that the fact that an adjudicating panel includes judges appointed following a recommendation by the post-2018 NCJ is sufficient grounds to declare a violation of the ‘independent and impartial tribunal established by law’ within the meaning of Article 6 ECHR. As such, the Strasbourg jurisprudence guarantees a potentially different, higher standard than that afforded by Luxembourg. Since C-132/20 a presumption has been introduced by the Court of Justice, that the referring national court fulfils the standard of effective judicial protection under Article 267 TFEU, Article 19 (1) TEU and Article 47 of the Charter. In order to rebut the presumption, a judgment of an international court is required inter alia to show that the referring judge is not a tribunal established by law under Article 6 ECHR, Article 19(1) TEU and Article 47 of the Charter. After C-326/23 it seems to be enough if a judge was nominated in similar circumstances as the national judges directly affected by an ECHR judgment. Here, the participants, also the Commission, clearly avoided the reference to any Strasbourg judgment in that regard and did not explore that topic at all.
Even so, the judgment in C-197/23 is significant for the Court of Justice broadening its scope of action to include what might be perceived as a threat for effective judicial protection. As it was the first judgment dealing with the application of Article 19(1) TEU to changes made to the pre-allocation of judges to a case (there was a lack of a connecting factor with the provisions of EU law in the Austrian case C-256/19, which could have been the precedent here had it not been declared inadmissible), its role is difficult to overestimate. The innovative and welcome use of Article 19(1) TEU goes further and broadens the protection of the independence of the judiciary.
Maciej Taborowski is Professor at the Institute of Law Studies of the Polish Academy of Sciences, Member of the Good Lobby Profs and former Deputy Ombudsman of the Republic of Poland (2019-2022).
Jakub Kocjan is PhD candidate at the Institute of Law Studies of the Polish Academy of Sciences.
Taborowski, M. and Kocjan, J.; “Article 19(1) TEU goes deeper: the Independence of European Judges begins within their own Courts (S, Case C-197/23 )”, EU Law Live, 10/12/2024, https://eulawlive.com/op-ed-article-191-teu-goes-deeper-the-independence-of-european-judges-begins-within-their-owncourts-s-case-c-197-23/
THE LONG READ
SPECIAL EDITION:
EU ACCESSION TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS: AN EU LAW SCHOLARS’ PERSPECTIVE
EDITED BY FEDERICO CASOLARI
Dripping Water Hollows Out Stone…
Federico Casolari 1
‘The drop hollows out the stone, the ring is worn by use, and the curved ploughshare is rubbed by the pressure.’ With these words, the famous Latin poet Ovid reminds us in Epistulae ex Ponto that with an iron will, one can achieve otherwise impossible goals.
As Felix Ronkes Agerbeek rightly noted in his analysis of the EU accession to the European Convention on Human Rights (ECHR) recently published in an EU Law Live Weekend Edition, 2 following Opinion 2/13, 3 the European Union’s participation in the ECHR has been described in terms of a mission impossible.4 This is mainly due to the arguments used by the Court of Justice of the European Union (CJEU) to declare the draft agreement on the Union’s accession to the ECHR incompatible with the EU Treaties, with arguments that focus on a profound contrast between the draft agreement and the structural elements and autonomy of the EU legal order.
Some important changes have taken place since then. First, the Court of Justice has strongly contributed to promoting the ‘normalisation’ of the Common Foreign Security Policy (CFSP)5. The latest development in this respect is the KS and KD ruling,6 in which the Court – while emphasising the inclusion of the CFSP in the EU constitutional framework, which in turn is based on the ‘very identity’ of the EU legal order, namely the values enshrined in Article 2 TEU7 – held that ‘if the [CFSP] acts and omissions at issue are not directly related to those political or strategic choices, the Court of Justice of the European Union has jurisdiction to assess the legality of those acts or omissions or to interpret them.’8 Secondly, the tenacity of negotiators like Felix Ronkes Agerbeek made it possible to reach a provisional agreement on the revision of the accession instruments,9 trying to find workable solutions to the problems highlighted by the Luxembourg judges in their Opinion 2/13
1. Full Professor of EU law and Head of the Department of Legal Studies at the Alma Mater Studiorum – University of Bologna, federico. casolari@unibo.it.
2. Felix Ronkes Agerbeek, ‘EU Accession to the European Convention on Human Rights: An EU Negotiator’s Perspective’, EU Law Live Weekend Edition, 22 June 2024, at 2.
3. Opinion 2/13 of 18 December 2014 (Accession of the European Union to the ECHR), ECLI:EU:C:2014.
4. Editorial comments, Common Market Law Review, (2015) 52, Issue 1, 1–16 at 14.
5. Ramses A. Wessel, Foreign and Security Policy. The Choice of the Appropriate Legal Basis, in Claire Kilpatrick and Joanne Scott (eds), Contemporary Challenges to EU Legality (Oxford University Press 2021), 71 – 99, 71; Peter Van Elsuwege, Judicial Review and the Common Foreign Security Policy: Limits to the Gap-Fillinf Role of the Court of Justice, Common Market Law Review, (2021) 58, Issue 6, 1731–1760. See also Editorial comments, Common Market Law Review, (2018) 55, Issue 6, 1675–1684.
6. Judgment of 10 September 2024, KS and KD / Council and others (C-29/22 P and C-44/22 P, ECLI:EU:C:2024:725).
7. Ibid., para 68.
8. Ibid., para 117.
9. Steering Committee for Human Rights (CDDH), Interim Report to the Committee of Ministers, for information, on the negotiations on the accession of the European Union to the European Convention on Human Rights, including the revised draft accession instruments in appendix, CDDH(2023)R_EXTRA ADDENDUM, 4 April 2023.
On the basis of the fruitful exchange of views that took place during a seminar organised within the framework of my course on EU Constitutional Law at the University of Bologna (held on 10 April 2024), and in the light of the most recent developments in practice mentioned above, Alezini Loxa, Xavier Groussot, Peter Van Elsuwege, and Nicola Bergamaschi propose a doctrinal reflection on the EU accession to the ECHR. The contribution by Alezini Loxa and Xavier Groussot sets the scene and identifies the main trajectories of the path of rapprochement between the EU legal system and that of the ECHR. In his contribution, Peter Van Elsuwege focuses on one of the latest stages of this path, namely the Court of Justice’s judgment in KS and KD, assessing its implications with respect to the accession process. Finally, Nicola Bergamaschi examines the draft agreement, checking its level of compliance with the red lines drawn by the CJEU in its jurisprudence, with particular reference to the mutual trust principle.
The contributors argue that, even if it is still too early to conclude that the gaps measured by the Court of Justice in its Opinion 2/13 have been definitively bridged, there is no doubt that, drop by drop, what seemed to be a granitic stance against accession to the ECHR now appears less unattainable.
At a time when the winds of legal populism and unilateralism are blowing strongly, this openness should certainly not be underestimated.
Bologna, 10 November 2024
Once Upon a Time Before the Accession of the EU to the ECHR: From Shadow to Light
Alezini Loxa 10 and Xavier Groussot 11
I. Introduction
The European Union (EU) accession to the European Convention of Human Rights (ECHR) has been firmly on the agenda for the past thirty years. In this contribution, we will discuss how the coordination of the two systems has moved from the shadow to the (spot)light, emphasising the role played by the Court of Justice of the EU (the Court, or CJEU) throughout the process. We argue that the interaction of the two systems can be narrated through a history played out in three parts. In the first part, the protection of fundamental rights became embedded in European Community law in the shadow of its much-defended autonomy (II. ‘Shadow’). In the second part, we discuss the attempts to accede to the ECHR and to bring human rights into the spotlight, and we present how these issues were deflected through the interpretation of the Court in its Opinion 2/13 (III. ‘ClairObscur’) In the third part, we show how the Court has, step by step, overcome the hurdles it created and has finally provided us with a light at the end of the tunnel (IV. ‘Light’).
II. Shadow: Building the Autonomy of Community Law in the Shadow of Fundamental Rights Obligations
Any discussion on the interaction of EU law with the ECHR necessarily has a starting point in the 1970s, when the Court developed its doctrine on the protection of fundamental rights as general principles of EU law.12 In a series of cases challenging Community action for lack of compliance with human rights, the Court embedded fundamental rights as an integral part of Community law by suggesting that they are protected as general principles inspired by the common constitutional traditions of the Member States and the International Conventions to which they are parties.13 In so doing, the Court did not explicitly address the relation of Community law to the ECHR, but rather dealt with the matter in the shadows. It suggested that the rights protected by the ECHR are a source of inspiration for the development of fundamental rights as general principles. The relevant findings were key in safeguarding the autonomy of the EU legal system and the primacy of EU law, and they were later incorporated into the treaty text.14 As this approach allowed space for fundamental rights considerations when
10. Post-doctoral Researcher in EU Law at Lund University, Department of Law, alezini.loxa@jur.lu.se.
11. Professor of EU Law at Lund University, Faculty of Law, xavier.groussot@jur.lu.se.
12. See, however, Gráinne de Búrca, ‘The Road Not Taken: The European Union as a Global Human Rights Actor’ (2011) 105 The American Journal of International Law 649.
13. Judgment of 12 November 1969, Stauder / Stadt Ulm (29/69, ECLI:EU:C:1969:57); Judgment of 14 May 1974, Nold KG / Commission (4/73, ECLI:EU:C:1974:51); Judgment of 17 December 1970, Internationale Handelsgesellschaft mbH / Einfuhr- und Vorratsstelle für Getreide und Futtermittel (11/70, ECLI:EU:C:1970:114).
14. See Takis Tridimas, ‘Primacy, Fundamental Rights and the Search for Legitimacy’ in Loïc Azoulai and Miguel Poiares Maduro (eds), The Past and Future of EU Law : The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010). See also preamble to the Single European Act
applying Community law, it was also accepted as aligning with the obligations of Member States to the ECHR.15
In parallel to the jurisprudential evolution, discussions were taking place within European institutions on a potential accession to the ECHR.16 In the context of such discussions and absent any draft agreement, the Council sought an Opinion from the Court pursuant to Article 218(11) TFEU on whether a potential accession to the ECHR would be compatible with EU law. In Opinion 2/94, the Court held that the EU had no express or implied competence in the field of human rights, and for that reason, any accession would be impossible without a treaty change.17 That Opinion was the first time in which the Court made sure that accession plans would remain in the shadows (the second coming two decades later with Opinion 2/13). Though the Court of Justice rejected accession at this time, it started to consolidate the human rights acquis based on the doctrine of the unwritten general principles, using more and more extensively the ECHR provisions and case law as sources of inspiration from the mid-nineties to the entry into force of the Lisbon Treaty and the EU Charter of Fundamental Rights in December 2009.18
III. A European Clair-Obscur: From Deflection to Reflection on EU Fundamental Rights
The second part of the history of accession is one of deflection. It starts with changes in the Treaties as a basis for ensuring the closer interaction of the two systems and by a political commitment to stronger accountability for the EU in the sphere of human rights. In this regard, the Treaty of Lisbon under Article 6(2) TEU provided a clear basis for accession to the ECHR. What is more, Article 6(2) suggested that a potential accession shall not affect the Union’s competences under the Treaties. Next to this key provision, the EU also has adopted its own Charter of Fundamental Rights which became binding by virtue of Article 6(1) TEU. The Charter recognised the ECHR as a source of inspiration in the preamble and a closer examination of the explanations of the Charter serves as a constant reminder of the relationship between many Charter rights and specific ECHR Rights. In addition, Article 52(3) refers to the ECHR to define the scope of protection of rights that exist in both the ECHR and the Charter.19 Finally, Article 53 of the Charter includes a provision on the level of protection which provides that the Charter shall not be interpreted as restricting human rights recognised among others in the ECHR. These changes might not have led to accession, but they did lead to significant coordination between the two systems.20
15. Judgment of the ECtHR of 30 June 2005, Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v. Ireland (Application no 45036/98, ECLI:CE:ECHR:2005:0630JUD004503698).
16. 1979 Bulletin of the European Communities, Supplement 2/79, Memorandum on the accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 April 1979; Communication from the Commission, On Community accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms, SEC (90) 2087 final. 17. Opinion 2/94 of 28 March 1996 (Accession of the Community to the ECHR), ECLI:EU:C:1996:140. Note that at the time the ECHR was open to accession by States only due to the wording of Article 59 ECHR before amendment by Protocol 14.
18. See for a systematic assessment of the case law, Xavier Groussot, General Principles of Community Law (Europa Law Publishing, 2006).
19. Xavier Groussot and Eduardo Gill-Pedro, ‘Old and New Human Rights in Europe: The Scope of EU Rights versus that of ECHR Rights’ in Eva Brems and Janneke Gerards (eds), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press 2014) arguing that this includes case-law as well.
20. See Johan Callewaert, ‘Do We Still Need Article 6(2) TEU? Considerations on the Absence of EU Accession to the ECHR and Its Consequences’ (2018) 55 Common Market Law Review 1685.
In the meantime, Article 59(2) ECHR was also amended by the adoption of Protocol 14 to create a clear basis for accession of the EU to the ECHR. With these changes shining light on a potential accession, a Draft Accession Agreement was prepared and submitted to the Court of Justice for an Opinion. With Opinion 2/13, the Court in Full Chamber deflected the issue and pushed the potential of accession back into the shadow.21 In a muchanalysed and lengthy Opinion, the Court explained the incompatibility of the Draft Accession Agreement due to the specific characteristics of EU law.22 Without going into detail as to the five grounds on which the Court based its incompatibility, it suffices to say that all the matters related broadly to the autonomy of EU law and the jurisdiction of the Court. The strongest point of contention – which is reflected by the numerous arguments made by the Member States,23 and especially the French Republic – was based on the lack of CJEU jurisdiction in Common Foreign and Security Policy (CFSP) matters. According to Article 24(1) TEU, the Court has limited jurisdiction over the CFSP, and it is only allowed to monitor compliance with Article 40 TEU (conferral) and to review the legality of certain decisions adopted under Article 275(2) TFEU (annulment procedure for restrictive measures). In a nutshell, the argument was that accession to the ECHR is not possible since the ECtHR could not have jurisdiction in CFSP matters when the CJEU has no jurisdiction. For many, the Opinion was seen as a significant blow to any potential accession.24 And indeed, this was the prevalent feeling in academic and political circles until the negotiations for accession resumed in 2020. Following Opinion 2/13, the relationship between the two courts was not at its best for many years – which has lucidly been called a ‘somber mood’ by Iglesias Sánchez and Sarmiento.25 Yet, it appears that the overlapping rule of law litigations to save Europe from a general backsliding brought the two courts back together in a very timely fashion, at the same time that the accession negotiations resumed in 2020. It may be said that the spirit of the rule of law has generated analytical reasonings and reflections in a debate too often steered by passions and disruptions.
IV. Light: Light at the End of the Tunnel
In 2020, the accession negotiations resumed. While the negotiations managed to overcome all the points raised by the Court in Opinion 2/13, and a Draft Accession Agreement was prepared in March 2023, one point remained unresolved. And this was the jurisdiction of the Court in the CFSP.26 In Opinion 2/13, the Court had deemed irreconcilable the fact that a potential accession to the ECHR would give full powers to the ECtHR to review
21. Opinion 2/13 of 18 December 2014 (Accession of the European Union to the ECHR), ECLI:EU:C:2014.
22. It would be impossible to provide an exhaustive list Piet Eeckhout, ‘Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky’ (2015) 38 Fordham International Law Journal 955; ibid; Tobias Lock, ‘The Future of the European Union’s Accession to the European Convention on Human Rights after Opinion 2/13: Is It Still Possible and Is It Still Desirable’ (2015) 11 European Constitutional Law Review 239; Giuseppe Martinico, ‘Building Supranational Identity: Legal Reasoning and Outcome in Kadi I and Opinion 2/13 of the Court of Justice’ (2016) 8 Italian Journal of Public Law 235.
23. Opinion 2/13, paras 131–135.
24. Adam Lazowski and Ramses A Wessel, ‘When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR’ (2015) 16 German Law Journal 179; Eleanor Spaventa, ‘A Very Fearful Court: The Protection of Fundamental Rights in the European Union after Opinion 2/13’ (2015) 22 Maastricht Journal of European and Comparative Law 35; Jed Odermatt, ‘A Giant Step Backwards - Opinion 2/13 on the EU’s Accession to the European Convention on Human Rights’ (2015) 47 New York University Journal of International Law and Politics 783.
25. Daniel Sarmiento and Sara Iglesias Sanchez, ‘The Strasbourg Effect’, EU law Live Issue n 23, 13-17 May 2024.
26. Opinion 2/13, paras 247–257.
CFSP action for respect of fundamental rights, whereas the CJEU’s jurisdiction would still be limited as per the Treaty provisions.
Overcoming this issue would appear to be complicated, as only a Treaty change would confer full jurisdiction to the Court to review CFSP action. But even the unlikely scenario of a Treaty change being effected would not mean that Member States would be on board with extending the Court’s jurisdiction. In this section, we argue that in a line of case law that began with Rosneft and Bank Refah Kargaran, and recently concluded with Neves77 and KS and KD the Court resolved the issue that it had itself created.27
Before Neves 77 and KS and KD
First, in Rosneft, the Court had to address whether it had jurisdiction to examine the validity of decisions on restrictive measures in the context of the preliminary ruling procedure when Article 275(2) TFEU seems to limit its jurisdiction for actions brought under Article 263 TFEU. In that case, the Court held that a reading of Article 275(2) TFEU in light of Article 19(1) TEU and Article 47 of the Charter demands an interpretation of the relevant provision meaning that the Court has a limited jurisdiction rationae materiae. 28 This means, in turn, that the Court only has jurisdiction to review the legality of decisions on restrictive measures and not of all CFSP acts in general and that its jurisdiction is not limited to proceedings initiated under Article 263 TFEU, as Article 275(2) TFEU might seem to suggest on a first reading. Building on Rosneft, in Bank Refah Kargaran, the Court confirmed that the limitations of Article 275(2) refer to a rationae materiae limit which relates to any issue of review of decisions on restrictive measures. According to the Court, the coherence of the EU system of judicial protection requires that the Court has jurisdiction to rule on the harm caused by restrictive measures and also in proceedings of actions for damages.29 At this stage, the first limitations of the Court’s jurisdiction on CFSP were overcome. Unlike what an initial reading of Article 275(2) TFEU would suggest, the Court interpreted the provision as meaning that its jurisdiction extended to actions brought under Article 268 TFEU further to actions brought under Article 263 TFEU, in as much as they relate to CFSP decisions on restrictive measures. This would mean that, in principle, all other CFSP actions beyond restrictive measures should escape the Court’s jurisdiction. However, nothing escapes the Court, as we learned on September 10th, 2014, when the decisions in Neves 77 and KS and KD were issued, thereby completing the CFSP jurisdiction puzzle.
It is worth observing here that AG Ćapeta, in her Opinions in Neves77 and KS and KD, emphasised that the broader context of these two cases is the accession to the ECHR.30 However, the restrictive solution proposed
27. Judgment of 28 March 2017, Rosneft (C-72/15, ECLI:EU:C:2017:236); Judgment of 6 October 2020, Bank Refah Kargaran / Council (C-134/19 P, ECLI:EU:C:2020:793); Judgment of 10 September 2024, Neves 77 Solutions (C-351/22, ECLI:EU:C:2024:723); Judgment of 10 September 2024, KS and KD / Council and others (C-29/22 P and C-44/22 P, ECLI:EU:C:2024:725).
28. Judgment of the Court of Justice, Rosneft, para 76.
29. Judgment of the Court of Justice, Bank Refah Kargaran, para 39.
30. Advocate General Ćapeta’s Opinion of on 23 November 2023, Neves 77 Solutions (C-351/22, ECLI:EU:C:2023:907); Advocate General Ćapeta’s Opinion of on 23 November 2023, KS and KD / Council and others (C-29/22 P and C-44/22 P, ECLI:EU:C:2023:901).
by the Advocate General in Neves 77 made it impossible to make a strong case for accession to the ECHR. As a result, much of the debate on accession to the ECHR in the last months has focused on KS and KD and not on Neves 77. 31 The Court of Justice, by adopting a different reasoning and offering a divergent interpretation regarding general restrictive measures, has rightly put Neves 77 back in the centre of the issue of accession to the ECHR together with KS and KD
After Neves 77 and KS/KD
In the Neves 77 case, the Court had to deal with decisions relating to restrictive measures of general scope (restrictive measures are usually implemented through the process of Article 215 TFEU).32 Due to the individual nature of the restrictions, they are exempted from the Court’s lack of jurisdiction in CFSP under Article 275 TFEU, while in Rosneft the Court further extended its jurisdiction to validity review in the context of a preliminary ruling procedure.33 In the present case, the restrictive measures were not of an individual nature but rather imposed a general prohibition of brokering services in relation to military goods in the context of the Russian aggression against Ukraine in 2013, and the relevant measures were not implemented by a regulation adopted under Article 215 TFEU. In Neves 77, the Court suggested that the Council’s failure to take all necessary measures to adopt the relevant action as an implementation of Article 215 TFEU cannot prejudice the right to judicial protection of the parties.34 In this regard, the Court drew on Article 2 TEU and Article 21 TEU as expressions of the rule of law that should guide EU external action and action in the CFSP in order to establish jurisdiction in interpreting restrictive measures of general scope even if these measures were not based on an implementation of a regulation adopted under Article 215 TFEU.35 Following the recognition of its own jurisdiction, the Court of Justice was then able to interpret the legality of a national measure confiscating the entire proceeds of a brokering transaction by considering Article 17 of the EU Charter. This case is essential for accession to the ECHR since by extending its 267 TFEU jurisdiction based on Article 2 TEU (in a situation where it was asked to interpret the proportionality of a national measure authorising the confiscation of the entire profit of a transaction); the CJEU asserted that EU fundamental rights are also applicable when Member States adopt national sanctions measures that are based on a provision of general scope relating to the CFSP, and this even if this EU legislation is not adopted under Article 215 TFEU. Neves 77 is a very progressive ruling that extends the ‘rule of law’ logic (now based on Article 2 TEU) already seen in Kadi, Rosneft, or Bank Refah Kargaran (and based specifically on the rhetoric of effective judicial protection and Article 47 of the EU Charter). KS and KD delivered on the same day could have been decided by operating the same progressive ‘rule of law’ logic, thus following the line advocated by AG Ćapeta in her opinion. Yet, the Court of Justice decided otherwise by drawing a factual distinction between
31. Xavier Grousssot and Anna Zemskova, ‘Using Financial Tools to Protect the Rule of Law’ in Anna Södersten and Edwin Hercok (eds) The Rule of Law in the EU: Crisis and Solutions, SIEPS, 2023.
32. Judgment of the Court of Justice, Neves 77, para 42.
33. See also Judgment of 3 September 2008, Kadi and Al Barakaat International Foundation / Council and Commission (C-402/05 P and C-415/05 P, ECLI:EU:C:2008:461).
34. Judgment of the Court of Justice, Neves 77, paras 48–49.
35. Judgment of the Court of Justice, Neves 77, paras 51–53.
Neves 77 and KS and KD that led to a tournant in terms of judicial reasoning. For the Court of Justice, and in a nutshell, Neves77 is about restrictive measures, whereas KS and KD is not.
Indeed, KS and KD is concerned with a more sensitive scenario than Neves 77 from a human rights perspective, that is, an action for damages brought before the General Court for harm caused by the CFSP mission EULEX Kosovo. The General Court dismissed the action – for lack of jurisdiction to adjudicate on the matter.36 In a Grand Chamber decision, the Court annulled the decision of the General Court and established jurisdiction to hear the relevant action in a quite peculiar way since its overall logic was based on showing the limits of effective judicial protection and that effective judicial protection is, in other words, not absolute. This is quite a stunning difference compared with the above-discussed jurisprudence. The reasoning of the Court of Justice, therefore, deserves some closer attention.
In coming to such a conclusion in KS and KD, the Court of Justice went through all the human rights arguments of the parties and rejected their relevance for extending jurisdiction. After suggesting that Article 19 TEU demands the narrow interpretation of Article 24(1) TEU and Article 275 TFEU, the Court rejected the argument of the applicants that jurisdiction is demanded both in light of the fundamental rights of individuals that the EU should respect when acting within the scope of EU law (Articles 47 of the Charter and in Articles 6 and 13 ECHR) and in relation to the broader constitutional architecture of the EU which demands respect for fundamental rights in the way in which the EU structures both its internal and its external action (Article 2, Article 3(5) and Articles 6, 19, 21 and 23 TEU).37 The Court held that invoking Article 47 EU Charter together with Articles 6 and 13 ECHR cannot in themselves extend the jurisdiction of the Court under Article 275 TFEU.38 And relatedly, the Court rejected the argument of the European Commission suggesting that jurisdiction should be established by interpreting the relevant provisions in light of Article 6(2) TEU.39 Moreover, the Court rejected the argument that jurisdiction could have been established due to the Court’s exclusive jurisdiction to hear disputes on noncontractual liability of the EU based on the earlier decision in Bank Refah Kargaran 40 The Court suggested that Articles 24(1) TEU and 275 TFEU should be regarded as leges speciales in relation to the general jurisdiction on non-contractual liability of Articles 268 and 340 TFEU.41 This means that jurisdiction on the subject matter of the action for damages must be established first for the Court to have jurisdiction to hear the action for damages. Finally, the Court also rejected the argument that Article 298 TFEU, in conjunction with Article 41 of the Charter, would allow the Court to find jurisdiction.42
36. Order of the General Court of 10 November 2021, KS and KD v Council of the European Union and Others (T-771/20, ECLI:EU:T:2021:798).
37. Judgment of the Court of Justice, KS and KD, paras 65–69.
38. Judgment of the Court of Justice, KS and KD 70–71 and 77–81 with extensive reference to ECHR case-law on the interpretation of Article 6(1) and 13 ECHR.
39. Judgment of the Court of Justice, KS and KD, para 82.
40. Ibid., para 85.
41. Ibid., para 91.
42. Ibid., para 95.
So far so good, in the sense that the Court does not solve the problem of jurisdiction despite the fundamental rights arguments invoked. Yet, in a remarkable move of judicial acrobatics, the Court establishes jurisdiction by using the arguments rejected above while concealing that it does so. Specifically, after rejecting some parts of the complaints of the appeal, the Court goes on to examine other parts and explains that even if it cannot establish jurisdiction because a CFSP action does not fall within the situations covered by Article 24(1) TEU and Article 275 TFEU, then it is necessary to assess whether jurisdiction can be based on the fact that the actions or omissions at issue ‘are not directly related to the political or strategic choices’ made by the EU institutions in the context of the CFSP action.43 The Court even refers to past case law to make this groundbreaking evolution appear as a natural continuation. However, this new doctrine on ‘political or strategic choices’ (or ‘Political Question Doctrine’) does not seem to flow in any apparent way from the cases invoked, which are related to staff disputes and public procurement contracts in the context of CFSP missions.44 In any case, the Court of Justice tells us that if the acts or omissions are not related to ‘political or strategic choices’, then it does, in fact, have jurisdiction to assess them.45 It is in this crucial part of the ruling (paras. 115-117) that the Court of Justice builds a new test for extended jurisdiction in CFSP/CFSD matters by excluding the ‘Political Question Doctrine’ from its own jurisdiction.
Importantly, the Court of Justice adds that such a finding is based on a literal and contextual interpretation of the provisions of Article 24(1) TEU and Article 275 TFEU ‘as is apparent from paragraphs 62, 68 to 73, 77 to 80 and 91’.46 What is eloquently hidden in the way in which the Court structures its argumentation is precisely what is developed in the referred paragraphs and which the Court has already rejected in the first part of the appeal. That is, firstly, that Article 19 TEU demands a narrow interpretation of Article 24(1) and 275 TFEU (para. 62). Secondly, that the inclusion of the CFSP in the EU constitutional framework means that foundational principles of EU law apply therein, and in particular the respect for the rule of law and fundamental rights under Article 2 TEU and Article 19 TEU, and that it should be reconciled with Article 47 of the EU Charter, Articles 6 and 13 ECHR (paras. 68-73 also with reference to AG Opinion points 77, 79, 80). Thirdly, the Court must ensure that the interpretation it gives to Article 47 of the EU Charter corresponds to the level of protection provided by the ECHR and specifically by Articles 6(1) and 13 to which it corresponds (paras. 78–80). Fourthly, the limits of jurisdiction set in articles 24(1) TEU and 275 TFEU should be interpreted as leges speciales in relation to the exclusive jurisdiction of the Court on the non-contractual liability of the EU under Articles 268 and 340 TFEU (para. 91).
In essence, the Court of Justice openly rejects all the above arguments as a reason to extend jurisdiction invoked by KS and KD and then uses all these arguments to contextualise the interpretation of Article 275 TFEU and finds
43. Ibid., paras 115–116.
44. Judgment of 12 November 2015, Elitaliana v Eulex Kosovo (C-439/13 P, EU:C:2015:753), Judgment of 19 July 2016, H v Council and Others (C-455/14 P, EU:C:2016:569); Judgment of 25 June 2020, SatCen v KF (C-14/19 P,EU:C:2020:492).
45. Judgment of the Court of Justice, KS and KD, para 117.
46. Judgment of the Court of Justice, KS and KD, para 119.
that, indeed, there is jurisdiction in CFSP in any decision that does not relate to ‘political or strategic choices’. By developing the so-called ‘Political Question Doctrine’, the Court becomes the ultimate arbiter of what a political or strategic choice in the context of CFSP is. Instead of extending its jurisdiction to cover specific types of actions as it did in the past (extending jurisdiction to hear claims on restrictive measures both in the context of preliminary ruling and in the context of an action for damages), the Court now has the power to establish jurisdiction in any area of the CFSP as long as the decision made is not political or strategic. This eventually solves the last remaining issue in the accession as the CJEU establishes a broader jurisdiction to hear matters related to CFSP.
In KS and KD, the Court of Justice had the possibility to develop its jurisdiction by following the logic used in its previous case law and developed by AG Cápeta in her opinion. Instead, and going counterintuitively against its previous logic, it has chosen to shape a ‘Political Question Doctrine’ in EU law to make sure that the CFSP matters are sometimes immune from jurisdiction when addressing ‘political or strategic choices.’47 In doing so, the Court of Justice addresses the fears of some of the Member States and particularly of the French Republic48 of seeing all types of CFSP matters/litigations ending up before the CJEU or the ECtHR. In that respect, it is not surprising that the Court of Justice explicitly mentions the argument of the French Republic used in the ECtHR Markovic, that certain acts of foreign policy fall outside the jurisdiction of the courts. For the Court of Justice in KS and KD, if a CFSP situation does not deal with a general or individual restrictive measure, then a distinction must be drawn between, on the one hand, acts of purely administrative management which are not inextricably linked to the CFSP and which have no political connotation and, on the other hand, acts the purpose of which is to contribute to the conduct, definition or implementation of the CFSP. This carving out of jurisdiction for acts involving ‘political or strategic choices’ at the European level is a necessary politico-judicial prerequisite to proceed with accession to the ECHR.
V. Conclusion: The Light that Shines Bright through Interpretation
Unlike most cases of EU coordination where the main issue is the lack of political will, and in which cases the Court has more often than not stepped in and solved the matter, the complicated dynamics of accession to the ECHR have been primarily exacerbated by judicial reasoning.49 The Court was celebrated for bringing fundamental rights as general principles into the European Community’s legal order at a time when human rights concerns were considered secondary in relation to economic integration. The demand for greater political integration brought the issue of fundamental rights protection of the EU to the centre. While the autonomous EU law system has evolved, accountability gaps are ever-present and cannot be addressed internally.50 This is
47. See the contribution of Peter Van Elsuwege in this Weekend Edition, ‘Judicial Review in the Field of Common Foreign and Security Policy: The Implications of KS/KD and Neves 77 for EU Accession to the European Convention of Human Rights’.
48. Supra, Sect. III.
49. Fritz W Scharpf, ‘The Asymmetry of European Integration, or Why the EU Cannot Be a “Social Market Economy”’ (2010) 8 SocioEconomic Review 211.
50. See Melanie Fink, Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’ under the ECHR and EU Public Liability Law, Oxford University Press, 2018; Melanie Fink, ‘The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable’, (2020) 21 German Law Journal 532 See also Joyce de Conick, Shielding Frontex 2.0, The One with the Impossible Proof, Verfassungsblog 30 January 2024.
among the reasons why accession to the ECHR would have made a difference in shaping a coherent system of European fundamental rights protection.
In 2014, the Court suggested that despite the various arguments for the systematic interpretation with which it was presented by the Commission, it ‘has not yet had the opportunity to define the extent to which its jurisdiction is limited in CFSP matters as a result of those provisions’.51 Through a series of cases slowly developing over the majority of the past decade, the Court has, step by step, expanded the limits of its jurisdiction.52 The addition of KS and KD and Neves 77 last month and ten years after Opinion 2/13 completed a puzzle and resolved the last thorny issue in the Draft Accession Agreement, an issue that the Court itself had created. By examining these recent evolutions in the context of a thirty-year history, we argue that the Court has finally placed the potential accession to the ECHR in the spotlight. Finally, there seems to be hope for the new Draft Accession Agreement to satisfy the Luxembourg bench.53
51. Opinion 2/13, para 251.
52. See Christian Breitler, Jurisdiction in CFSP Matters – Conquering the Gallic Village One Case at a Time?, European Law Blog, 29 July 2024.
53. See the contribution by Nicola Bergamaschi in this Weekend Edition, ‘The New Draft of the Union’s Accession Agreement to the European Convention on Human Rights: Fit for the Approval from the European Court of Justice?’.
Judicial Review in the Field of Common Foreign and Security Policy: The Implications
of KS/KD and
Neves
77
for EU Accession to the European Convention on Human Rights
Peter Van Elsuwege 54
I. Introduction
On 10 September 2024, the Grand Chamber of the Court of Justice issued two long-awaited judgments with direct relevance to the question of judicial review in the field of Common Foreign and Security Policy (CFSP).55 The latter is the last remaining obstacle towards a revised draft agreement on the accession of the European Union (EU) to the European Convention on Human Rights (ECHR). At the latest meeting of the ad hoc negotiating group, held in Strasbourg from 14 to 17 March 2023, it was decided that all the issues raised by the Court of Justice in Opinion 2/13 had been addressed, except the so-called ‘Basket 4’ concerning ‘the situation of EU acts in the area of Common Foreign and Security Policy that are excluded from the jurisdiction of the Court of Justice of the European Union’.56
With respect to this issue, the representative of the EU informed the other negotiating parties that a resolution was to be found internally within the EU legal order. Whereas an amendment of the EU Treaties would be the most straightforward legal solution, the political appetite for such an endeavour is very low. As a consequence, all eyes are directed towards the Court of Justice of the European Union (CJEU). In a response to the European Commission’s argument that a systemic interpretation of the relevant EU Treaty provisions may lead to the conclusion that its jurisdiction is sufficiently broad to encompass any situation that could be covered by an application to the European Court of Human Rights (ECtHR), the Court of Justice observed in Opinion 2/13 that it had not yet had the opportunity to define the extent to which its jurisdiction in CFSP matters is limited.57 Since this Opinion, the issue of judicial control in the area of CFSP returned in a series of judgments.58
54. Professor of European Union Law and Jean Monnet Chair at Ghent University, Ghent European Law Institute (GELI), Peter. VanElsuwege@UGent.be.
55. Judgment of the Court of Justice of 10 September 2024, KS and KD v. Council (Joined Cases C-29/22 P and C-44/22 P, EU:C:2024:725); Judgment of the Court of Justice of 10 September 2024, Neves 77 Solutions (Case C-351/22, EU:C:2024:723).
56. Meeting report of the 18th meeting of the CDDH Ad Hoc Negotiation Group (“46+1”) on the accession of the European Union to the European Convention on Human Rights, 17 March 2023.
57. Opinion 2/13 of the Court of Justice of 18 December 2024, EU:C:2014:2454, para 251.
58. Most notably, Judgment of the Court of Justice of 24 June 2014, Parliament v. Council (Case C-658/11 EU:C:2014:2025); Judgment of the Court of Justice 12 November 2015, Elitaliana SpA v. Eulex Kosovo (Case C-439/13 P, EU:C:2015:753); Judgment of the Court of Justice of 19 July 2016, H v. Council (Case C-455/14 P, EU:C:2016:569); Judgment of the Court of Justice of 28 March 2017 , PJSC Rosneft Oil Company v. Her Majesty’s Treasury and Others, (Case C-72/15, EU:C:2017:236); Judgment of the Court of Justice of 25 June 2020, European Union Satellite Centre v. KF (Case C-14/19 P, EU:C:2020:492); Judgment of the Court of Justice of 6 October 2020, Bank Refah Kargaran v. Council and Commission (Case C-134/19 P, EU:C:2020:793).
As has been argued elsewhere, the CJEU gradually developed a consistent line of case law, based on the horizontal application of general constitutional principles and mechanisms.59 In essence, this implies that the CFSP is an integral part of the post-Lisbon EU legal order and, as such, subject to the rule of law and respect for fundamental rights and values. Of course, this ‘integrationist logic’ cannot conceal the express limitations on the scope of the Court’s jurisdiction as defined in Articles 24(1) TEU and 275(1) TFEU. Hence, the core question is how far the CJEU’s ‘gap-filling role’ can be stretched in light of the principles of institutional balance and conferral. The judgments in KS and KD, on the one hand, and in Neves 77, on the other hand, provide another piece in this complex puzzle.
II. Common Foreign and Security Policy as an Integral Part of the EU Legal Order: The Crucial Role of Article 23 TEU
Since Opinion 2/13, the Court of Justice has gradually clarified that its role in the field of CFSP is less limited than what a cursory reading of the Treaties may suggest. The key consideration is that a derogation from the rule of general jurisdiction, which Article 19 TEU confers on the EU Courts, must be interpreted narrowly.60 This is exactly the opposite of Advocate General Kokott’s position in her View in Opinion 2/13. She found that the EU Courts could ‘only highly exceptionally’ have jurisdiction in relation to the CFSP, namely with respect to the monitoring of compliance with the ‘non-affectation’ clause of Article 40 TEU and regarding actions for annulment from natural or legal persons against restrictive measures adopted by the Council.61
A comparison between the view of Advocate General Kokott, on the one hand, and the post-Opinion 2/13 case law, on the other hand, reveals a fundamental difference of perspective. AG Kokott focused only on the specific CFSP provisions (Articles 24 (1) and 275 TFEU), leading to a narrow interpretation of the Court’s jurisdiction in this field. The Court of Justice, on the other hand, focused on the broader picture with the full integration of the CFSP in the EU legal order as one of the fundamental innovations of the Treaty of Lisbon. In this respect, the significance of Article 23 TEU cannot be underestimated. This provision forms the linchpin between the CFSP and the EU’s general principles and values. It expressly provides that the Union’s action in relation to the CFSP ‘shall be guided by the principles, shall pursue the objectives of, and be conducted in accordance with, the general provisions [on the Union’s external action]’.62 The EU’s external action, which encompasses both CFSP and nonCFSP external policies, is based on a single set of objectives – defined in Article 21 TEU – and is guided by the EU’s internal principles and values, as laid down in Article 2 TEU. Hence, the EU Treaty provisions relating to the CFSP cannot be separated from the general structure and logic of the EU’s constitutional architecture.
59. Peter Van Elsuwege, ‘Judicial review and the Common Foreign and Security Policy: Limits to the gap-filling role of the Court of Justice’, 6 Common Market Law Review 58, 2021, pp. 1731-1760.
60. The Court for the first time referred to the narrow interpretation of the exceptions to its jurisdiction in CFSP matters in Case C-658/11, European Parliament v. Council (Pirate Transfer Agreement with Mauritius), EU:C:2014:2025, para 70.
61. View of Advocate General Kokott of 13 June 2014 in Opinion 2/13 (EU:C:2014:2475, point 84).
62. On the significance of Article 23 TEU, see also the Advocate General Wathelet’s Opinion of 31 May 2016 in Rosneft (Case C-72/15, EU:C:2016:381, point 66).
Applied to the specific question of judicial review in relation to the CFSP, it follows from the principle of effective judicial protection – as an inherent aspect of the rule of law – that the jurisdiction of the EU Courts is to be interpreted broadly and the exceptions narrowly. The recent judgments in KS and KD and Neves 77 proceed from this basic understanding to further clarify the role of the CJEU. In the case of KS and KD the core question concerned the EU Courts’ jurisdiction over an action for damages for alleged breaches of fundamental rights committed in the implementation of an EU rule of law mission. In Neves 77, the interpretation of a CFSP decision under the preliminary reference procedure was at stake.
III. Defining the Scope of the EU Courts Jurisdiction in the Field of CFSP: A Framework for Analysis
Taken together, the judgments in KS and KD and Neves 77 reveal the consolidation of an analytical framework for defining the scope of the EU Courts’ jurisdiction in the field of CFSP. In essence, this involves a two-step test. First, it is determined whether a situation falls within one of the situations provided for in the last sentence of the second subparagraph of Article 24(1) TEU and the second paragraph of Article 275 TFEU. These are the so-called ‘claw-back’ provisions expressly providing jurisdiction to the CJEU in relation to the monitoring of compliance with Article 40 TEU and the legality of CFSP decisions providing for restrictive measures against natural or legal persons. Second, for situations not falling within the scope of those provisions, a ‘political questions’ test determines whether or not the CJEU has jurisdiction. Only acts or omissions that are directly related to political or strategic choices made by the institutions, bodies, offices, and agencies of the EU in the context of the CFSP fall within the jurisdictional ‘carve-out’ derogating from the general jurisdiction which Article 19 TEU confers on the CJEU to ensure that in the interpretation and application of the Treaties the law is observed.
In Neves 77, the Court of Justice further developed its broad interpretation of the claw-back provisions. Building upon Rosneft, which already asserted the Court’s jurisdiction to give preliminary rulings on the legality of CFSP decisions imposing restrictive measures against individuals or entities, it now addressed the interpretation of a measure of general scope (the prohibition of providing brokering services) within the framework of a preliminary reference procedure. Significantly, the Court did not follow the Opinion of Advocate General Ćapeta who had suggested that questions of interpretation fall outside the scope of the CJEU’s jurisdiction.63 To the contrary, it proceeded from a combined reading of various EU Treaty provisions to conclude that it can rule on such questions when the Council ought to adopt a Regulation implementing a CFSP decision imposing restrictive measures.64 This conclusion is based upon a broad understanding of the two grounds providing explicit jurisdiction in the field of CFSP. First, the task of monitoring compliance with the ‘mutual non-affection clause’ of Article 40 TEU is not subject to any particular limitations. The Court then considered that the absence of a Council Regulation to be adopted under Article 215(1) TFEU for CFSP decisions concerning the interruption or reduction of economic and financial relations with a third country affected its own prerogatives within the EU legal order. Second, the Court highlighted that the jurisdictional carve-out in relation to restrictive measures only concerns
63. Advocate General Ćapeta’s Opinion of 23 November 2023 in Neves 77 Solutions, point 76.
64. Judgment of the Court of Justice, Neves 77 Solutions, para 53.
CFSP decisions but not the implementing regulations adopted under Article 215 TFEU. The combination of both considerations allowed the Court to close another gap in the judicial review of restrictive measures adopted in the context of the CFSP.
In KS/KD, the Court of Justice was confronted with a situation that clearly did not fall within the scope of the claw-back provisions. For the first time, the Court was asked to rule on an action for damages for alleged human rights violations committed in the implementation of an EU rule of law mission.65 Proceeding from the principles of conferral and institutional balance, the Court rejected the suggestion of AG Ćapeta that all actions involving fundamental rights questions necessarily fall within the scope of CJEU jurisdiction.66 In order to decide whether or not a certain act or omission is subject to the judicial review of the CJEU, the Court introduced an explicit political questions test. Only when there is a direct link with ‘political or strategic choices’ does the CJEU have to declare that it lacks jurisdiction.67 The core question, of course, is how the borderline between political or strategic choices, on the one hand, and other choices can be drawn in practice. The only option appears to be a case-by-case analysis of each act or omission falling within the scope of the CFSP. Accordingly, the Court found that decisions about the allocation of resources made available to a CFSP mission and the removal of the executive mandate of such a mission are directly related to strategic and policy choices whereas decisions about the choice of personnel, the (lack of) legal aid in proceedings before a review panel, the (lack of) enforcement powers conferred to such a panel and the failure to take remedial action fall within the scope of CJEU jurisdiction.
IV. Squaring the Circle: Revisiting Opinion 2/13 and EU Accession to the ECHR
The judgments in KS/KD and Neves 77 provide another prime example of the Court’s ‘gap-filling role’. Proceeding from a teleological interpretation of the Treaties and based upon a combined reading of various provisions, the Court avoids in so far as possible the existence of lacunae to ensure a system of effective judicial protection within the EU legal order. This approach is not without criticism, mainly because the Court itself is also due to respect the limits of its own competences under the principle of conferral.68 Be that as it may, the Court’s narrow interpretation of the ‘carve-out’ clause in relation to the CFSP in KS/KD and its broad interpretation of the ‘clawback’ provision in Neves 77 does not come as a surprise. On the contrary, it is consistent with the entire line of case law since Opinion 2/13. This, of course, triggers the question of to what extent the limits to the EU Courts’ jurisdiction in relation to the CFSP are still to be considered as an obstacle towards EU accession to the ECHR.
The Court’s judgments do not give any definite answer but include several important considerations. In particular, it is highlighted that the jurisdictional carve-out in CFSP matters is not necessarily problematic from the perspective of the ECHR. In KS/KD, the Court of Justice observed that the limitation of its jurisdiction in CFSP
65. This is to be distinguished from the situation in Bank Refah Kargaran, where the Court had found that an action for damages in relation to CFSP decisions pertaining to individual restrictive measures falls within the scope of the ‘claw back’ provision of Article 275 TFEU.
66. Advocate General Ćapeta’s Opinion of 23 November 2023 in KS and KD, para 155.
67. Judgment of the Court of Justice, KS and KD, para 117.
68. Thomas Verellen, ‘A Political Questions Doctrine for the CFSP’, Verfassungsblog, 24 September 2024.
matters can be reconciled both with Article 47 of the Charter and with Articles 6 and 13 ECHR.69 Of particular significance is the reference to the case law of the ECtHR in Markovic and Others v Italy and H.F. and Others v. France, where it was found that constitutional limitations of the jurisdiction of courts with respect to acts that are inherently connected to a State’s international relations do not infringe Article 6 ECHR.70 Arguably, the same logic behind the non-intervention of the ECtHR in the foreign affairs decisions of States applies mutatis mutandis with respect to the jurisdictional carve-out for CFSP matters in the EU legal order. In essence, the latter is interpreted as nothing more than a codified ‘political questions doctrine’, which can also be found in the constitutional order of several States.
The post-Opinion 2/13 case law of the Court of Justice already provides for quite a long list of situations where a full judicial review is guaranteed in areas that are connected to the field of CFSP. This is particularly the case with respect to restrictive measures, as a special category of CFSP acts affecting the rights of individuals. The political questions test included in KS/KD further confines the potential list of situations falling outside the jurisdiction of the CJEU to such an extent that it is not directly obvious under which circumstances the ECtHR would be empowered to rule on the compatibility with the ECHR where the CJEU would be excluded from performing a review in light of fundamental rights.71 A decade after Opinion 2/13, it appears that this question can again be brought to the attention of the Court of Justice in a new opinion procedure under Article 218(11) TFEU with respect to the revised draft agreement on EU accession to the ECHR.72
69. Judgment of the Court of Justice, KS and KD, para 70.
70. Ibid., para 78.
71. See also: Daniel Sarmiento and Sara Iglesias Sánchez, ‘KS and Neves 77: Paving the Way to the EU’s Accession to the ECHR’, EU Law Live, 12 September 2024; Jasper Krommendijk, ‘One step closer after KS and KD: EU accession to the ECHR’, REALaw.blog, 1 October 2024.
72. See the contribution by Nicola Bergamaschi in this Weekend Edition, ‘The New Draft of the Union’s Accession Agreement to the European Convention on Human Rights: Fit for the Approval from the European Court of Justice?’.
The New Draft of the Union’s Accession Agreement to the European Convention on Human Rights: Fit for the Approval from the European Court of Justice?
Nicola Bergamaschi 73
I. Introduction
In March 2023, a revised draft of the European Union (EU) accession agreement to the European Convention on Human Rights (ECHR) was finalised by the ad hoc negotiation group ‘46+1’ (hereafter, Group ‘46+1’).74 Two months later, at the Reykjavík Summit, the Heads of State and Government of the Council of Europe’s Member States gave their ‘welcome’ to the provisional agreement.75 Can we assume that the troubled road towards the Union’s accession to the ECHR is finally nearing its end?
The closing of the negotiations certainly represents an ‘essential step’ in this sense.76 Anyway, the answer to the above question depends, inter alia, on the compatibility of the new accession agreement with the Treaties and the specific characteristics of the EU legal order. In fact, one could reasonably expect the Court of Justice to be asked to give its opinion under Art. 218(11) TFEU on the negotiated text before the conclusion of the agreement on the part of the EU. It would be the third Court of Justice opinion concerning the EU’s accession to the Convention. As well known, the two previous accession attempts failed, in 1996 and 2014, on the grounds of Opinion 2/94 and Opinion 2/13. 77 The latter, in particular, has set a high threshold to be met for the accession agreement to comply with EU law and its autonomy. Five years after its delivery, Group ‘46+1’ was mandated to overcome the flaws of the last version of the draft accession agreement (the 2013 version), which meant those identified in the rejection of the draft by the Court of Justice.
The task was not easy, as the problems to be fixed were many and delicate. In its last report, Group ‘46+1’ concluded that ‘it had resolved all of the issues that it was currently expected to address’,78 but with a major caveat. The
73. Post-Doctoral Research Fellow in European Union Law at the University of Parma, Department of Law, Politics and International Studies, nicola.bergamaschi@unipr.it.
74. Interim Report to the Committee of Ministers, for information, on the negotiations on the accession of the European Union to the European Convention on Human Rights, including the revised draft accession instruments in appendix, 4 April 2023. For a comment, see Felix Ronkes Agerbeek, ‘EU Accession to the European Convention on Human Rights: An EU Negotiator’s Perspective’, EU Law Live Weekend Edition, 22 June 2024; Paul Gragl, ‘The New Draft Agreement on the EU Accession to the ECHR: Overcoming Luxembourg’s Threshold’, European Convention on Human Rights Law Review, 2024, pp. 1–26.
75. Council of Europe, ‘Reykjavík Declaration’, 16–17 May 2023, p. 8.
76. Felix Ronkes Agerbeek, cit., p. 3.
77. Opinion 2/94 of the Court of Justice of 28 March 1996, ECLI:EU:C:1996:140; Opinion 2/13 of the Court of Justice of 18 December 2024, EU:C:2014:2454.
78. Meeting report of the 18th meeting of the CDDH Ad Hoc Negotiation Group (“46+1”) on the accession of the European Union to the European Convention on Human Rights, 17 March 2023, p. 3.
new draft agreement does not deal with one of the thorniest obstacles to the accession raised by Opinion 2/13, concerning the scope of the CJEU’s jurisdiction in the field of Common Foreign and Security Policy (CFSP).
Group ‘46+1’ considered instead leaving it to the EU to address such a complicated matter at its internal level. As the recent Court of Justice judgments may (perhaps) have untied the CFSP knot,79 it thus remains to be seen whether the Council of Europe’s Steering Committee for Human Rights (CDDH) will consider the draft accession agreement ready to move to the conclusion phase.80 If this were the case, the request for the Court of Justice’s opinion would not be long in following.
II. Opinion 2/13 as a Guide: The Content of the New Draft Accession Agreement
Group ‘46+1’ organised its works on a thematic basis. It listed all the issues which made the previous draft agreement incompatible with EU law according to Opinion 2/13 and divided them into four ‘baskets’, as follows:
• Basket 1 ‘EU-specific mechanisms of the procedure before the European Court of Human Rights [ECtHR]’: the reference is to the co-respondent and the prior-involvement mechanisms, specifically designed in the 2013 draft agreement to reconcile the ECHR jurisdictional rules with the Union’s specific characteristics and the prerogatives of the CJEU.
• Basket 2 ‘Operation of inter-party applications (Article 33 of the Convention) and of references for an advisory opinion (Protocol No. 16) in relation to EU member states’: it regards three different issues relating to the Member States’s participation in the ECHR: the risk of an inter-party dispute among the EU and the Member States, the (in)consistency between Article 33 ECHR and Article 344 TFEU and the coordination between the advisory opinion under Protocol No. 16 of the ECHR and the preliminary ruling procedure under Article 267 TFEU.
• Basket 3 ‘The principle of mutual trust between the EU member states’: it is about the coexistence of the mutual trust principle under EU law and the human rights scrutiny by the ECtHR.
• Basket 4 ‘EU acts in the area of the Common Foreign and Security Policy’: aAs anticipated, this basket remained empty, as the new draft does not cover this issue.
In addition, outside these baskets, the negotiations also dealt with a further point of Opinion 2/13, namely that concerning the interplay between Article 53 of the Charter of Fundamental Rights (CFR) and Article 53 ECHR in the light of the Court of Justice’s Melloni doctrine.
Except for Basket 4, the final text contains specific clauses covering all the Baskets’ issues. So, in brief, the corespondent and prior involvement mechanisms (already present in the 2013 draft) are proposed in a refined
79. See Daniel Sarmiento and Sara Iglesias Sánchez, ‘Insight: “KS and Neves 77: Paving the Way to the EU’s Accession to the ECHR”’, in EU Law Live, 12 September 2024. See also the contributions by Alexini Loza, Xavier Groussot, and Peter Van Elsuwege in this Weekend Edition.
80. See Interim Report to the Committee of Ministers, cit., p. 2.
version (Article 3), inter-party disputes are prevented among the EU and the Member States and among these latter insofar as they ‘concern the interpretation or the application of EU law’ (Article 4), the advisory opinion under Protocol No. 16 would require a preliminary ruling from the CJEU (Article 5), the application of the mutual trust principle ‘shall not’ be affected by the accession (Article 6), and Article 53 ECHR is not supposed to interfere with the Melloni doctrine (Article 1(9)).
A detailed analysis of the suitability of all these clauses to pass the Court of Justice’s assessment in a future opinion goes beyond the intention of this work.81 All in all, the new draft seems to address the Court of Justice’s concerns, incorporating the observations made in Opinion 2/13 and fixing most of the critical points of the 2013 version. Yet, as will be shown below, uncertainty remains for two aspects concerning the draft clauses related to Protocol No. 16 (Basket 2) and the mutual trust principle (Basket 3).82
III. EU Law as a Matter of EU Law
One of the main innovations of the new draft relates to a very sensitive point from the perspective of the autonomy of EU law. The problem originates in the introduction of ad hoc mechanisms or other rules envisaged to conciliate the jurisdiction of ECtHR with the specific characteristics of the EU legal order, namely those in the context of Baskets 1 and 2. These instruments are needed for the EU to accede to the ECHR, but they could also be problematic for EU law’s autonomy. Even if they serve different purposes and cover various situations, all of them are triggered in cases where the ECtHR is (or would be) asked to rule over issues of EU law or to take EU law otherwise into consideration in its scrutiny. So, the first step for these instruments to apply is a decision determining whether EU law is relevant in a case before the ECtHR. But who should be in charge to decide? In the view of the Court of Justice,83 the assessment of the EU law nature of an issue brought before the ECtHR corresponds to a matter of EU law. Accordingly, the autonomy of EU law prevents it from being made by a judge who sits outside the EU’s internal judicial system.
Against this background, the new draft agreement presents specific clauses conferring to the EU the prerogative to internally assess whether the requirements for the activation of the mentioned instruments are met. In the cases of the co-respondent and the prior involvement mechanisms,84 the draft explanatory report to the accession agreement refers to a ‘determinative and authoritative’ finding by part of the EU about the presence of the conditions and the necessity for their application.85 Similarly, in the context of the mechanism excluding the ECtHR jurisdiction on inter-party disputes among the EU Member States for cases involving the interpretation and application of EU law under Article 344 TFEU, the occurrence of such a situation is to be ultimately ascertained by the EU itself.86
81. See Paul Gragl, cit.
82. See Tobias Lock, ‘Op-Ed: “Third time lucky? The revised agreement on the EU’s accession to the ECHR”’, in EU Law Live, 19 April 2023.
83. Opinion 2/13, paras 221–225 and 229–234.
84. Article 3(5) and (6) of the draft accession agreement.
85. Interim Report to the Committee of Ministers, cit., Appendix 5, paras 61 and 76.
86. Article 4(4) of the draft accession agreement.
Curiously, Article 5 of the new draft agreement, regulating the post-accession functioning of the advisory opinion under Protocol No. 16 of the ECHR, does not foresee a determination of this kind by the EU.87 This probably should have been the case.88 The provision prevents the EU Member States from obtaining an advisory opinion from the ECtHR ‘if the question falls within the field of application of European Union law’. This formulation may be enough to prevent a conflict between Protocol No. 16 and the preliminary reference procedure after the EU accession, as it avoids the possibility that a Member State’s judge submits a question concerning EU law to Strasbourg instead of Luxembourg. Yet, it does not clarify who is entitled to decide whether the question under examination is an EU law issue. For this reason, the Court of Justice could find the new draft agreement to be at odds with the autonomy of EU law. In this case, the parties could consider adding an appropriate clause in this part of the draft accession agreement.
IV. (Mutual) Trust Issues
The issue concerning the compatibility between the principle of mutual trust and the accession of the Union to the ECHR deserves specific attention. It was expected to be one of the most difficult problems for the negotiations and, indeed, the solution envisaged by the new draft agreement does not appear so watertight.
The problem related to mutual trust lies in the presumption that all the Member States equally respect fundamental rights (since they share the funding values of Article 2 TEU), allowing the establishment of an Area of Freedom, Security, and Justice within the Union and informing the cooperation instruments among the Member States based on mutual recognition,89 such as the European Arrest Warrant (EAW). Accordingly, the recourse by EU Member States’ national authorities to cooperation instruments inspired by mutual trust tolerates a certain degree of risk of fundamental rights breaches at the individual level on the part of other Member States.90 The same conduct could instead result in a violation of the ECHR.
In Opinion 2/13, the Court of Justice concluded that the 2013 draft agreement failed to give due consideration to the principle, compromising its fundamental role within the EU constitutional framework.91 In response, the new draft agreement tries to strike a balance between mutual trust and human rights protection: on the one hand, the accession ‘shall not affect the application of the principle of mutual trust’; on the other hand, the protection of human rights under the Convention ‘shall be ensured’ in this context too.92
Whether such a clause is enough to ensure peaceful coexistence between the principle of mutual trust and the ECHR after the accession cannot be taken for granted. The answer revolves around the question of the limits
87. On this topic, see Ilaria Anrò and Bruno Nascimbene, ‘The devil is in the details: does the end of Protocol n° 16 to the ECHR lie in the wrinkles of the EU accession to the ECHR process?’, in Eurojus, 1 February 2021.
88. See Jean-Paul Jacqué, ‘What next after Opinion 2/13 of the Court of Justice on the accession of the EU to the ECHR?’, Policy Department for Citizens’ Rights and Constitutional Affairs, 2016, p. 34. For a different view, see Paul Gragl, cit., pp. 15–16.
89. Opinion 2/13, paras 191–192.
90. Advocate General Ćapeta’s Opinion of 13 July 2023 in GN (C-261/22, ECLI:EU:C:2023:582, paras 29–31).
91. Opinion 2/13, paras 193–195.
92. Article 6 of the draft accession agreement.
of the mutual trust presumption.93 The point is to what extent the presumption can – or shall – be set aside in protecting fundamental rights. In this regard, the draft agreement does not provide a definite answer. It is thus necessary to look at the two Courts’ approaches. Since the times of Opinion 2/13, the situation has evolved. On the one side, the Luxembourg case law consistently confirmed that mutual trust is not absolute nor ‘blind’ to fundamental rights protection.94 On the contrary, the CJEU defined case by case the interaction between mutual trust and fundamental rights, also following the ECtHR approach.95 On the other side, the Strasbourg Court acknowledged the importance of the principle for the EU legal order.96 Yet, the two Courts do not completely converge on the test to derogate from mutual trust on human/fundamental rights grounds. While the ECtHR refers to a ‘manifest deficiency’ of human rights protection, the CJEU developed a two-pronged approach (the Aranyosi and Căldăraru test), especially in the context of the EAW.97 As known, the CJEU’s test consists of two steps of the assessment of the fundamental rights violation risk by the executing Member State’s authority, concerning both the systemic or generalised situation of the issuing Member State and the specific condition of the individual at stake. The necessity to fulfil the first part of the test, in particular, may lead to an actual violation of the person’s fundamental rights if the presence of a risk at the individual level is not accompanied by systemic or generalised deficiencies in the issuing Member State.98
The current state of affairs cannot thus ensure perfect compliance of the mutual trust principle with the ECtHR human rights protection standards.99 In any case, this does not necessarily imply the impracticability of the EU’s accession to the Convention. As observed by Lock, the above-mentioned clause should be read together with the prior involvement mechanism, which is also part of the draft agreement.100 This latter (basically) allows the CJEU to express itself on an EU law issue, on which it has not yet had the occasion to do so, before the ECtHR does. As a result, after the accession, the CJEU would always have the possibility to expose its view on the modalities of the mutual trust application in a given case before the same point is addressed in Strasbourg. Although the CJEU’s findings in this context are not binding for the ECtHR, they can be a precious tool for the latter to avoid contradictions with the former, in a cooperative attitude among the two courts.101 In conclusion, while the new draft accession agreement is not per se decisive in resolving the possible conflicts between the mutual trust principle and the human rights protection under the Convention, the accession process can succeed if the courts place trust in each other. In this sense, the ECtHR should trust the overall degree of fundamental rights
93. Ronkes Agerbeek, cit., p. 4.
94. Koen Lenaerts, ‘La vie après l’avis: Exploring the principle of mutual (yet not blind) trust’, 54 Common Market Law Review 3, 2017, pp. 805–840.
95. Eugene Regan, ‘The role of the principles of mutual trust and mutual recognition in EU law’, Il Diritto dell’Unione Europea 2, 2018, pp. 231-247, pp. 244–245.
96. Judgment of the ECtHR of 23 May 2016, Avotiņš v. Latvia (Application no. 17502/07, CE:ECHR:2016:0523JUD001750207, para 113).
97. Judgment of the Court of Justice of 5 April 2016, Aranyosi and Căldăraru, (C-404/15, ECLI:EU:C:2016:198, paras 89–94).
98. Judgment of the Court of Justice of 3 January 2023, Puig Gordi and Others (C-158/21, ECLI:EU:C:2023:57, para 111).
99. Suggesting an innovative approach by the CJEU, Cecilia Rizcallah, ‘Mutual Trust under the European Arrest Warrant and Ongoing Challenges for Fundamental Rights’, Weekend Edition, 17 February 2023.
100. Article 3(6) of the draft accession agreement.
101. See Antonio Tizzano, ‘European Courts and the Protection of Fundamental Rights’, in Gunnar Selvik et al. (eds.), The Art of Judicial Reasoning, Springer, 2019, pp. 23–32, pp. 27–30.
protection within the EU legal framework, while the CJEU should trust the future ECtHR disposition to have mutual trust issues be dealt with in Luxembourg. The outcome of a future Court of Justice opinion on the new draft agreement may depend on this.
HIGHLIGHT F THE WEEK S O
Council Decision (Euratom) 2024/3030 of 2 December 2024 approving the position to be taken on behalf of Euratom in the Energy Charter Conference, published in OJ
Monday 9 December
The Council Decision (Euratom) 2024/3030, adopted on 2 December 2024, outlines the position to be taken by Euratom in the Energy Charter Conference.
Read on EU Law Live
Commission Decision on Germany’s support measures granted to Frankfurt-Hahn airport and Ryanair, published in OJ
Monday 9 December
Official publication was made of Commission Decision (EU) 2024/3021 of 9 September 2024 on the measures SA.43260 (2018/C) implemented by Germany in favour of Flughafen Frankfurt-Hahn GmbH and Ryanair DAC.
Read on EU Law Live
Russian Maritime Register of Shipping and UAB Jūrų Laivybos Registras challenge restrictive measures implemented in response to Russia’s actions destabilizing Ukraine
Monday 9 December
The Russian Maritime Register of Shipping and UAB Jūrų Laivybos Registras initiated legal proceedings against the Council of the European Union, challenging certain articles and annexes of Council Decision 2014/512/CFSP and Council Regulation (EU) No 833/2014.
Read on EU Law Live
Antonius Manders’ action concerning his admission to the election procedure of the European Ombudsman, officially published
Monday 9 December
An action brought by Antonius J. M. Manders against the European Parliament, claiming that the Court declares the last indent of Article 11(2) of the Statute of the Ombudsman null and void or non-binding, was published in the OJ: Manders v Parliament (T-476/24).
Read on EU Law Live
Czech companies and individual start legal action against European Public Prosecutor
Monday 9 December
Research Investments s.r.o., Areál Zákolany s.r.o., and Simon Cihelník filed a lawsuit against the European Public Prosecutor’s Office (EPPO) at the General Court of the European Union, seeking the annulment of three legal acts issued by the EPPO in August 2024.
Read on EU Law Live
Commission recommends improvements in visa-free travel compliance and confirms partner countries’ compliance with visa-free travel requirements
Monday 9 December
The European Commission published its seventh report under the Visa Suspension Mechanism, monitoring the compliance of the EU’s visa-free regimes with Western Balkan, Eastern Partnership, Eastern Caribbean countries with investor citizenship schemes, and Latin American countries.
Read on EU Law Live
Council adopts conclusions for the post-2027 Common Agricultural Policy
Monday 9 December
The Council of the EU approved its conclusions on a farmer-focused, post-2027 Common Agricultural Policy (CAP), which reflect a competitive, crisis-proof, sustainable, farmer-friendly and knowledge-based future EU agriculture.
Read on EU Law Live
Court of Justice streaming hearing on the interpretation of Brussels I bis Regulation, in context of alleged breaches of competition by Apple
Tuesday 10 December
The Court of Justice’s Grand Chamber hearing in Stichting Right to Consumer Justice and Stichting App Stores Claims (C34/24), a case concerning the interpretation and application of Article 7(2) of Regulation (EU) 1215/2012 (the Brussels I bis Regulation) in the context of collective claims and alleged infringements of competition law relating to purchases from the Netherlands Apple App Store.
Read on EU Law Live
Vacancy notice: Senior Legal Support Officer at the EPPO
Tuesday 10 December
The European Public Prosecutor’s Office (EPPO) is seeking applications for the position of Senior Legal Support Officer, in charge of providing legal support to the Permanent Chambers and to the European Prosecutors, as required.
Read on EU Law Live
Council adopts new rules for withholding tax procedures (FASTER) and reaches political agreement on a new directive for the introduction of an electronic tax certificate for VAT exemptions
Tuesday 10 December
The Council of the European Union adopted the FASTER directive to streamline and secure withholding tax procedures for cross-border investments, with the aim of facilitating double taxation relief, enhancing investment in EU financial markets, and combating tax fraud.
Read on EU Law Live
Commission approves Estonian aid scheme to foster renewable offshore wind energy
Tuesday 10 December
The European Commission approved a €2.6 billion Estonian support scheme regarding renewable offshore wind energy, with the aim of fostering the transition towards a net-zero economy.
Read on EU Law Live
ECtHR clarifies criteria for “family life” under Article 8 ECHR
Tuesday 10 December
The European Court of Human Rights (ECtHR) clarified the criteria for recognizing “family life” between adult family members under Article 8 of the European Convention on Human Rights (ECHR).
Read on EU Law Live
Commission updates agricultural state aid rules and proposes legislative amendments and new regulations to enhance farmers’ positions in the agri-food supply chain
Tuesday 10 December
The European Commission amended the ‘de minimis’ Regulation for the agricultural sector, which exempts small amounts of state aid from control due to their negligible impact on competition and trade.
Read on EU Law Live
Council Decision (EU) 2024/3086 of 2 December 2024 on the position to be taken on behalf of the European Union in the Energy Charter Conference, published in OJ
Wednesday 11 December
Official publication was made of Council Decision (EU) 2024/3086 of 2 December 2024, which outlines the Union’s position for the Energy Charter Conference regarding amendments to the Energy Charter Treaty (ECT) and the Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA).
Read on EU Law Live
EU fisheries ministers reach agreement on 2025 fishing opportunities
Wednesday 11 December
The Fisheries Ministers of the Member States reached a political agreement in the Council on fishing opportunities for 2025 in the Atlantic, North Sea, Mediterranean, and Black Seas.
Read on EU Law Live
Commission Decision on Hungarian regional State aid supporting production of automotive components, published in OJ
Wednesday 11 December
Commission Decision (EU) 2024/3031 of 11 June 2024 on the regional State aid, which Hungary is planning to implement for GKN Automotive Hungary Kft. (previously Rubin NewCo 2021 Kft.) for the setting-up of a new establishment for production of automotive components was officially published in the OJ.
Read on EU Law Live
General Court invalidates REA’s suspension of Grant Agreement promoting Italian and Spanish wines on Chinese and US markets
Wednesday 11 December
The General Court (Extended Composition) delivered its judgment in a case concerning an action against the European Research Executive Agency’s (REA) suspension of Grant Agreement 874904-TTD.EU – European Quality Wines: Taste The Difference: UIV Servizi v REA (T-440/22).
Read on EU Law Live
General Court delivers judgment in Al-Assad v Council case
Wednesday 11 December
The General Court delivered its judgment in case Al-Assad v Council (T-420/23) concerning a Syrian businessman, challenging the Council of the European Union’s decision to include his name on a restrictive sanctions list.
Read on EU Law Live
EU sanctions against Dmitry Konov partially annulled by General Court
Wednesday 11 December
The General Court delivered its judgment in Konov v Council (T-326/22) concerning Dmitry Konov, a Russian businessman, whose name was added to the European Union’s sanctions list due to his involvement in sectors generating substantial income for the Russian government, which is responsible for destabilizing Ukraine.
Read on EU Law Live
Action of European Civil Service Federation against Council’s decision suspending its rights as representative trade union, dismissed by General Court
Wednesday 11 December
The General Court rendered its judgment in a case concerning an action brought by the Council Section of the European Civil Service Federation against the Council: FFPE section Conseil v Council (T-179/23).
Read on EU Law Live
Directive (EU) 2024/3019 of the European Parliament and of the Council of 27 November 2024 concerning urban wastewater treatment, published in OJ
Thursday 12 December
Official publication was made of Directive (EU) 2024/3019 concerning urban wastewater treatment, which modernizes the 1991 Directive 91/271/EEC to address new environmental challenges, enhance public health protections, and integrate climate adaptation strategies.
Read on EU Law Live
Regulation on transparency and integrity of ESG rating activities, published in OJ
Thursday 12 December
Official publication was made of Regulation (EU) 2024/3005, which lays down provisions to enhance the integrity, transparency, comparability, responsibility, reliability, good governance and independence of ESG rating activities.
Read on EU Law Live
Getin Holdings: EU law requires that national resolution authorities be independent, avoid conflicts of interest when performing their resolution functions
Thursday 12 December
The Court of Justice handed down judgment in Getin Holdings and Others (C-118/23), a request for a preliminary ruling from the Regional Administrative Court, Warsaw (Poland) concerning the interpretation, in the light of Articles 19(1)(2) TEU and Article 47 CFR, of Articles 3(3) and 85(2) and (3) of Directive 2014/59 on the recovery and resolution of credit institutions.
Read on EU Law Live
Court of Justice: Hungarian law on reinstatement of usufruct rights on agricultural land is compatible with free movement of capital and right to property
Thursday 12 December
On the 12th of December, the Court of Justice handed down judgment in Nemzeti Földügyi Központ (C-419/23), a request for a preliminary ruling from the Győr High Court (Hungary) concerning, in essence, the compatibility of national legislation on the reinstatement of usufruct rights on agricultural land with the free movement of capital and Article 17 of the Charter of Fundamental Rights.
Read on EU Law Live
Regulation prohibiting on the Union market products made with forced labour, officially published
Thursday 12 December
Regulation 2024/3015 of the European Parliament and of the Council of 27 November 2024 on prohibiting products made with forced labour on the Union market and amending Directive (EU) 2019/1937 was published in the OJ.
Read on EU Law Live
Court of Justice delivers judgments in DD v FRA cases: employment disputes and disciplinary actions
Thursday 12 December
The Court of Justice delivered its judgment in cases DD v FRA (C-587/21 P), DD v FRA (C-130/22 P) and DD v FRA (C-680/22 P).
Read on EU Law Live
Court of Justice partly sets aside General Court’s judgment in Niemelä and Others v. ECB on withdrawal of authorisation to operate as a credit institution
Thursday 12 December
The Court of Justice handed down judgment in Nemea Bank and Others v. ECB (C-181/22 P), a case arising from an appeal against the General Court’s order in Niemelä and Others v. ECB (T-321/17).
Read on EU Law Live
AG Medina’s Opinion in Myszak Case: consumer protection vs. bank resolution in EU Law
Thursday 12 December
Advocate General Medina delivered her Opinion in Myszak (case C-324/23) concerning the interpretation of Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and Article 34(1)(b) and (g) and Article 70(1) and (4) of Directive 2014/59/EU, which established a framework for the recovery and resolution of credit institutions and investment firms.
Read on EU Law Live
Council greenlights new set of rules on collection and transfer of advance passenger information
Thursday 12 December
The Council gave final approval for two regulations establishing the legal framework for the collection and transfer of advance passenger information (API), the aim of which is to strengthen EU border security and enhance the fight against terrorism and serious crime.
Read on EU Law Live
AG Campos Sánchez-Bordona delivers Opinion in emissions allowance dispute: Metsä Fibre’s excess allowance surrender and legal remedies
Thursday 12 December
Advocate General Campos Sánchez-Bordona delivered his Opinion in Metsä Fibre (Case C 414/23), a case concerning a Finnish company, which in 2013-2017 surrendered excess greenhouse gas emission allowances under EU regulation, based on a provision later invalidated by the Court of Justice.
Read on EU Law Live
Council and Parliament reach agreement on new rules streamlining financial benchmarks
Friday 13 December
The Council and the European Parliament reached a provisional agreement on a proposal to streamline benchmark authorisation and registration requirements, and to alleviate the burden on EU companies, particularly SMEs.
Read on EU Law Live
ECA publishes Opinion on Commission’s evaluation of EU External Action Guarantee
Friday 13 December
The European Court of Auditors (ECA) has published its Opinion on the Commission’s evaluation of the EU External Action Guarantee, highlighting several shortcomings and suggesting ways of improving the next evaluation.
Read on EU Law Live
Commission publishes trade-related components of the EU-Mercosur Agreement
Friday 13 December
In light of transparency and growing public interest in the trade negotiations between the EU and the Mercosur countries, the European Commission published the text of the trade-related components of the EU-Mercosur Agreement.
Read on EU Law Live
Amendments to the Norwegian CO2 compensation scheme, approved by ESA
Friday 13 December
The EFTA Surveillance Authority (ESA) has greenlighted amendments to the Norwegian CO2 compensation scheme, which aims to reduce the risk of undertakings moving their business to countries with less emission constraints.
Read on EU Law Live
Commission Regulation (EU) 2024/3118 amending Regulation (EU) No 1408/2013 on the application of Articles 107 and 108 TFEU to de minimis aid in the agriculture sector, published in OJ
Friday 13 December
Official publication was made of Commission Regulation (EU) 2024/3118 of 10 December 2024 amending Regulation (EU) 1408/2013 on the application of Articles 107 and 108 of the TFEU to de minimis aid in the agriculture sector.
Read on EU Law Live
AG Richard de la Tour: Where a judicial authority refuses to execute a EAW, it is for the issuing Member State to decide whether to retain an SIS alert
Friday 13 December
Advocate General Richard de la Tour delivered his Opinion in C.J. (C-305/22) and Cuprea (C-595/23), cases concerning the refusal of the execution of a European Arrest Warrant on non-optional grounds and the interpretation of the European Arrest Warrant Framework Decision in relation to the deletion of a SIS alert.
Read on EU Law Live
EFTA Court: Norway’s interpretation of residence rights breaches EEA law
Friday 13 December
The EFTA Court delivered its judgment in Case E-16/23, EFTA Surveillance Authority v The Kingdom of Norway, whereby ESA claimed that Norway failed to comply with Article 7(1)(b) of the Citizens Rights Directive.
Read on EU Law Live
Council adopts position on updated criminal rules on child sexual abuse and exploitation
Friday 13 December
The Council adopted its general approach on a proposal to update the EU’s criminal law rules on child sexual abuse and sexual exploitation of children, which expand the definition of the offences, thus making sure that all forms of child sexual abuse and exploitation that are facilitated by novel online tools are criminalised.
Read on EU Law Live
Council agrees its position on an EU law on preventing and countering migrant smuggling
Friday 13 December
The Council of the European Union reached an agreement on a new law aimed at preventing and countering migrant smuggling, which seeks to harmonize member states’ criminal laws on the definition and penalties associated with migrant smuggling.
Read on EU Law Live