Independence and procedural Obligations: a Landmark Judgement for EU Resolution Frameworks and judicial Protections in Getin Holding and Others (C-118/23)
Pier Mario Lupinu
On 12 December 2024, the Court of Justice delivered a landmark judgement in Getin Holding and Others (C118/23). The judgement, stemming from a request for a preliminary ruling by the Wojewódzki Sąd Administracyjny (WSA), the Regional Administrative Court in Warsaw, arose out of the resolution proceedings initiated against Getin Noble Bank S.A. (GNB) by the Bankowy Fundusz Gwarancyjny (BGF), the Polish resolution authority. This case represents one of the many affairs in which the Court of Justice has ruled on the independence of a resolution authority and the impact that a resolution decision has on shareholders and bondholders under resolution, a mechanism introduced in the European Union (EU) over a decade ago by Directive 2014/59/ EU (‘BRRD’). At its heart, the case examines the intersection between EU resolution frameworks, procedural safeguards under national law, and fundamental rights.
A resolution procedure is one of the pillars of the crisis management framework that has been established as a result of the financial collapse which occurred in Europe due to the outbreak of the 2007-8 Global Financial Crisis. The execution of a resolution procedure foresees the intervention of a public administrative authority (i.e., resolution authority), which is responsible for the orderly management of a bank experiencing significant financial distress, with the objective of restoring its viability via the so-called resolution measures. The latter include a write-down and conversion of eligible instruments and/or the transfer of the failing bank’s assets and liabilities to a bridge institution or a buyer, usually another market participant. This procedure is opposed to a liquidation led by a national court, as sometimes the latter is considered lengthy and not suitable for a quick response to an extreme urgency which aims to protect, among others, financial stability.
Over the last decade, resolution has been chosen in various banking crises that took place within the European Banking Union (EBU), opening the door for a myriad of cases targeting the decisions made by the supranational resolution authority, the Single Resolution Board. This time the case concerns an authority, the BFG, belonging to an EU Member State, Poland, located outside of the EBU. Established in 1994, the BFG was primarily an institution which protected funds that depositors hold in banks, cooperative savings and credit unions based in Poland, in other words, it represents the country’s deposit guarantee scheme (DGS). However, since the transposition of the BRRD, the BFG has been also entrusted with resolution powers.
As frequently occurs following the application of resolution measures, the Court had to rule on the decision to place the distressed bank into resolution. This trend results from the fact that the administrative resolution authority has been empowered by the BRRD with intrusive powers with respect to the property rights of investors,
meaning shareholders and bondholders. These holders of eligible instruments are, in fact, those that ‘pay the price’ of the application of resolution measures, since the value of their holdings is brought to zero by the write-down or conversion aimed at recovering the losses of the failing bank or recapitalising it with a view to a potential sale. This situation is the result of the shift of the burden of the failure of a bank from taxpayers to shareholders and bondholders, identified under the currently applicable EU crisis management framework as the responsible parties for the failure of the bank in question.
Having set the groundwork, it is possible to examine the doubts that led the WSA to file for a preliminary ruling to the Court of Justice over, among other things, the peculiar composition of the BFG. To do so, it is necessary to provide a brief background of the case. Since late 2021, the BFG was appointed as temporary administrator of Getin Noble Bank (GNB) by the Komisja Nadzoru Finansowego (KNF), the Polish financial supervisory authority. Almost one year later, due to the rapidly deteriorating financial situation of the bank, the BFG decided to put the latter into resolution. This decision was later challenged in front of the WSA by GNB’s Supervisory Board. The same action was brought also by shareholders, bondholders, and other concerned persons, thus resulting in over 8000 legal actions put forward to challenge the BFG’s decision. This number confirms what was stated above concerning the sensitivity of such a decision by an administrative authority. Hence, the WSA filed for a preliminary ruling with questions that are both of a procedural and substantive nature.
The procedural questions are the result of, on the one hand, the vast number of actions brought against the resolution decision; and, on the other hand, the presence of procedural obligations that would have led the WSA to rule on those actions jointly. The combination of the two circumstances would have made it impossible for the WSA to rule on all actions without jeopardising the delivery of a judgement in a reasonable time, resulting in a breach of the right to an effective remedy enshrined in Article 47 of the Charter. The Court of Justice stated that the priority must be to ensure for everyone concerned that the right to a due process and to an effective remedy be respected. In other words, the WSA would have to, if necessary, refrain from applying the provisions that oblige it to join the actions, giving the right to all persons affected by the resolution decision the right to challenge it.
On the substantive side, the questions brought by the WSA mainly concerned the organisational structure of the BFG in relation to its functions as resolution authority responsible for the decision targeting GNB. In this respect, the WSA highlighted how, under Polish law, the BFG encompasses the functions of a DGS, resolution authority, temporary administrator and curator, thus potentially putting at risk the operational independence of the individual function, i.e. the resolution function for the present case. The Court of Justice stated that the combination of several functions under the same organisation is compliant with EU law subject to the presence of statutory or organisational rules which prevent the emergence of conflicts of interests. This is the case also for the BFG, despite the absence of statutory rules but by virtue of organisational measures that protect frequently interconnected functions from external influence.
On this particular point concerning operational independence, it is important to highlight the absence of a wider discipline regulating potential conflicts of interest between various functions of the crisis management
framework, as stressed by Advocate General Richard de la Tour in his Opinion delivered in June 2024. Inside and outside the EBU, there are several organisational examples of ‘Chinese walls’ between functions or ‘sections’ of the same institution, as the Supervisory and Monetary Policy sides of the European Central Bank or the different compositions of the various resolution and supervision authorities. Nevertheless, all those compositions have attracted the attention of academics and judges, as in the GNB case, who question the suitability and the ‘strength’ of those structures and internal arrangements. It can be argued that they operate smoothly in ordinary times, but the present case has shown that the lack of statutory rules can give rise to doubts over the effectiveness of those arrangements, notwithstanding the legality (to be confirmed) of BFG’s resolution decision. Accordingly, it would be desirable for the EU legislator to come up with a minimum set of rules, principles or standards that would enhance the prevention of external influence or conflicts of interest in functions related to banks, their supervision and, especially, their crisis management.
On a final note on the case, being a preliminary ruling and, in essence, providing an interpretation of national (Polish) law in light of EU law, the present judgement does not rule on the legality of the disputed resolution decision. Hence, it will be for the Polish court to rule on the matter by taking into account the position of the Court of Justice analysed above.
Pier Mario Lupinu holds a Ph.D. in Banking and Finance Law jointly at the University of Luxembourg, where he lectured European Banking Law, and at Roma Tre University. He is currently employed as a Banking and Finance Knowledge Advisor at the Luxembourg office of an international law firm. Prior to this, he worked in legal positions for several EU institutions and agencies, such as the European Central Bank, the Single Resolution Board, the European Commission, and the European Investment Bank.
Mario Lupinu, P.; “Independence and procedural Obligations: a Landmark Judgement for EU Resolution Frameworks and judicial Protections in Getin Holding and Others (C-118/23)”, EU Law Live, 14/01/2025, https://eulawlive.com/op-ed-independence-and-procedural-obligations-a-landmarkjudgement-for-eu-resolution-frameworks-and-judicial-protections-in-getin-holding-and-others-c-118-23/
The Concept of Arranging Transportation in E-Commerce is, once again, under the Magnifying Glass of the Court of Justice, this time in Pohjanri (C-596/23)
Atanas Mateev
1. Introduction
On 19 December 2024, the Court of Justice delivered its judgment in Pohjanri (C-596/23).
The main issue in these proceedings was who is liable for excise duties with respect to goods sold online. Or, expressed from a legal perspective, the question was whether a cross-border consignment is classified as ‘distance selling’ and therefore falls within the scope of Article 36(1) Council Directive 2008/118/EC. If a transaction is deemed to be distance selling, then the seller is liable for the excise duties, which arise in the shipped-to Member State.
The definition of distance selling, according to Article 36 Council Directive 2008/118/EC, is legally no longer in force as it has been replaced by Council Directive (EU) 2020/262. However, the statements in the existing caselaw can be transferred to the current legal situation, as the definition ‘distance selling’ exists in almost the same wording in Art. 44 Council Directive (EU) 2020/262, which is currently in force.
One more thing should also be noted here and that is that although Pohjanri (C-596/23) was only concerned with the interpretation of distance selling, in terms of excise duties, it is also highly relevant for distance sales in terms of VAT. The principles of distance sales, with reference to VAT, are built on very similar pillars.
2. Background: The Importance of Transport Initiation in Cross-Border B2C Transactions
The background of the legal treatment, in terms of excise duties and VAT on B2C EU cross-border transactions, is similar. The fundamental idea of excise duty and VAT taxation is to tax the consumption where it takes place. In a B2C case, when the customer is a private individual, this consumption takes place at the shipped-to location. As a result, in a cross-border scenario, the right of taxation is shifted to the shipped-to Member State.
On the one hand if excise goods, which have already been released for consumption, are acquired across EU borders by a person established in another Member State who is not an authorised warehouse keeper or a registered (or certified according to the current legal situation) consignee and this person does not pursue an independent economic activity, the goods are subject to excise duty in the country of destination in accordance with Art. 36 Council Directive (EU) 2008/118 / Art. 44 Council Directive (EU) 2020/262. However, this applies only if the goods are transported with the direct or indirect assistance of the seller.
On the other hand, according to Art. 33 of Council Directive 2006/112, with a few exceptions, an intra-Community B2C supply (intra-Community distance sale) is always subject to VAT in the country of destination. Such intraCommunity distance sales occur when the seller is directly or indirectly involved in the transport. According to the Court of Justice, this also applied prior to the clarification in Art. 5a of the CIR (EU) 282/2011 as per 1 July 2021 (KrakVet C-276/18).
Hence, the crux of both provisions is that the seller needs to be responsible for the EU cross-border transportation of the goods. Pick-up cases do not fall within the scope of the provisions. Otherwise, it would be practically impossible for the seller to define the correct taxation of the goods. Hence, in addressing the issue of whether distance selling/distance sale has taken place, the transport responsibility element plays an important role.
The Court of Justice has already dealt with the question of how the term ‘direct or indirect participation’ of the seller is to be understood. In its judgments the Court of Justice has repeatedly emphasised that the concept of participation is to be interpreted very broadly.
In its judgment of 2 April 1998 EMU Tabac and Others (C-296/95), concerning the former excise duties laid out in Council Directive 92/12/EEC, the view of the Court of Justice concerning the expression ‘dispatched or transported directly or indirectly by the vendor or on his behalf’ was that this term must be given a broad scope and, at the same time, that its interpretation must reflect the economic reality of the transaction under consideration, and that any formalism must be disregarded.
In the case KrakVet (C-276/18) the Court of Justice viewed the term ‘direct or indirect participation’ through a VAT lens. Notwithstanding this, the result was the same – where the contractual provisions do not always reflect the economic and business reality, a comprehensive assessment of all special circumstances is required.
3. Facts of the Case and Ruling of the Court of Justice in Pohjanri (C-596/23)
The claimant operated a website, through which its customers were able to purchase beverages of different brands, with a low or high alcohol content. The website was also available in different languages and was also accessible to customers in other Member States. At first glance, the taxable person was not involved in the transport of the goods. Rather, when an order was placed, advertising for various transport service providers appeared online. The customer was free to choose the services of those service providers or to organise independent transport. If a buyer opted to use the transport service of one of the advertised service providers, he was then redirected to the third-party website. Here, the buyer was required to provide his contact details and to pay for the transport. However, the buyer was not required to provide any information about his order. Rather, the consignment data was automatically transferred to the transport service provider by the claimant’s website.
The Court ruled in its decision of 19 December 2024 that a seller who assists a buyer in choosing a transport company can be considered as being indirectly involved in the transportation of the goods, even if it is only involved in the guidance of the customer, and that therefore the seller is liable for excise duty in the country
of destination. The decisive factor in the assumed assistance was, above all, the fact that the shipment data was automatically transmitted to the carrier.
The Court emphasised again that the EU legislature is more concerned with the objective nature of the transaction than with its legal form and that the expression ‘dispatched or transported directly or indirectly by the vendor or on his behalf’ must be interpreted in such a way that the payment of excise duty reflects the economic reality of the transaction, and that any formalism must be disregarded.
4. Consequences for the Practice
The regulation open to question is mainly of importance in the e-commerce branch, where goods are sold online, and customers are widespread. And to call a spade a spade – anyone in e-commerce who is thinking about how they can get out of transport organisation is doing so mainly for tax reasons and to avoid reporting and tax obligations in other EU countries. In the current proceedings, the Court of Justice was required to rule on excise duty. Furthermore, the legal norm in question was no longer valid, at least from a legal perspective. Nevertheless, both the reasoning and the decision can be applied analogously to the current legal situation. This applies not only to excise duty, but also to VAT.
Simultaneously, if the tax determination of a company is not legally certain, the associated risk can end up being an unbearable burden for the taxable person involved. This risk is particularly high in e-commerce, where B2C business primarily takes place. In this business sector, the agreed prices are gross prices, not net. This being the case, sellers pay the taxes out of their own pockets. This makes it all the more important for every online retailer to correctly calculate their VAT and, if applicable, excise duty obligations in cross-border matters.
In the VAT case KrakVet (C-276/18), as well as in the excise duty case EMU Tabac and Others (C-296/95), the Court of Justice already made it clear that the civil law agreements existing between parties are not the only decisive factor. According to the Court of Justice, the actual business structure must also be considered. The Court of Justice also clarified, in the case at hand, that economic reality, and not the formal legal construction of the transactions, is critical for determining tax liability. The Court of Justice emphasises that sellers can also be subject to excise duty if the transport contract is ordered and paid for separately. This even applies if the seller only supports the service of the carrier by forwarding data on the shipment to the carrier. The same standards will probably also have to be applied to VAT.
In conclusion, it can be said that the concept of arranging transport in cross-border B2C business is to be viewed much more widely than in B2B cases. The concept of non-relevant involvement in arranging transport does not exist in a B2C scenario. If a seller has no involvement in the transport organisation, then the regulations on distance sales for VAT and excise duties do not apply. However, having said that, this variant will make little economic sense in cross-border e-commerce, since very few customers would place an order if they had to take care of the transport independently, especially from another EU country. If, on the other hand, the seller is involved in the transport in any way, even if it is only in the pure transfer of information, the place of taxation is in the country of destination.
Atanas Mateev is a Certified Tax Consultant based in Germany, specialising in cross-border VAT issues. He holds a doctorate in insolvency and tax law and is a lecturer at the Augsburg University of Applied Sciences. His most recent publication is ‘Law and practice: One-stop shop - or rather one-shot shop?’ in Mehrwertsteuerrecht 2024, page 548.
Mateev, A.; “The Concept of Arranging Transportation in E-Commerce is, once again, under the Magnifying Glass of the Court of Justice, this time in Pohjanri (C-596/23)”, EU Law Live, 15/01/2025, https://eulawlive.com/op-ed-the-concept-of-arranging-transportation-in-e-commerce-is-once-againunder-the-magnifying-glass-of-the-court-of-justice-this-time-in-pohjanri-c-596-23/
Downgrading of the Status of the Wolf: don’t crack a Nut with a Sledgehammer
Nicolas de Sadeleer
Having been hunted for centuries, the wolf (Canis lupus) disappeared from many parts of Europe during the 19th century. Its scarcity led States within the Council of Europe to grant it strict protection under the 1979 Bern Convention on the Conservation of European Wildlife and Natural Habitats. As the EU and its 27 Member States are parties to this mixed agreement, the species was subsequently granted strict protection in 1992 under the EU Habitats Directive (HD). Thanks to this international protection, populations of this large carnivore have almost doubled in ten years, rising from 11,000 individuals in 2012 to over 20,300 in 2023. The continued expansion of its range, and the colonisation of new territories, have inevitably led to local difficulties (e.g. attacks on 0.065% of the 60 million sheep in the EU).
Before it killed one of her ponies, the wolf that broke into a paddock on Ms. von der Leyen’s family property in 2023 clearly did not plead the cause of its fellow wolves. Following this attack, the President of the European Commission peremptorily decreed that wolf packs posed a ‘real danger’ to livestock and, potentially, to humans, even though the species does not consider humans as potential prey.
To make matters worse, frightened by last spring’s agricultural opposition to agri-environmental measures (Regulation (EU) 2024/1468 of 14 May 2024 amending various CAP Regulations) and the European Nature Restoration Act (Regulation (EU) 2024/1991 of 24 June 2024 on nature restoration), on 4 December 2024 the European Commission, with the backing of the Council of Ministers, submitted a proposal to the Standing Committee of the 1979 Bern Convention to downgrade the status of the wolf. In the near future, the wolf is likely to be downgraded from its current status as a ‘strictly protected’ species under the Appendix II to the Bern Convention, which prohibits hunting and other management measures, to one that allows ‘management measures’, which could include more systematic culling. Although Appendix III species are protected, their ‘exploitation’ can be regulated. The amendment to the Bern Convention will enter into force on 7 March 2025, unless a third of the parties object to it.
This amendment should enable the EU lawmakers to modify the relevant annexes of the HD, moving the wolf from Annex IV (strictly protected) to Annex V (protected). As the HD is subject to the ordinary legislative procedure (Art. 192(1) TFEU), the Commission will have to propose a legislative amendment to the European Parliament and the Council. In accordance with Article 19(1) HD, a unanimous vote in the Council is required, which sets the bar relatively high.
The modification of the legal status of this emblematic predator raises several difficulties, not least of a legal nature. Firstly, Member States must guarantee ‘wild species of Community interest’ a ‘favourable conservation status’ (FSC), which in short implies the immediate and long-term maintenance of their biogeographical range (Art. 2(2) HD). Secondly, according to the established case law of the Court of Justice, any measure that entails a reduction in the level of environmental protection must be justified in the light of the best available and the most recent scientific evidence (C-436/22, ASCEL, para. 65). Despite the increase in wolf populations on a continental scale, the wolf’s conservation status is not favourable in six of the EU’s seven biogeographical regions. More fundamentally, by requesting the abandonment of the strict protection regime, the EU is in essence seeking to use a sledgehammer to crack a nut. Indeed, whether under the 1979 Bern Convention or the 1992 HD, the strict protection status of a wildlife species is not synonymous with absolute protection. In the event that damage is caused by wolves to domestic livestock, national authorities may, by way of derogation, authorise the culling of the wolves responsible for the attacks (Article 16(1)b). However, such derogations are subject to conditions, which have been strictly interpreted by the Court of Justice in 2024 (C-601/22, WWF Österreich; C-436/22, ASCEL). Firstly, killing must not be detrimental to the maintenance of the FSC of the local and national populations. Secondly, it can only be ordered ‘if there is no other satisfactory alternative’ (C-324/20, Commission v Finland, para. 28), such as the construction of fences or the presence of sheepdogs, or even shepherds, as long as these measures do not involve disproportionate economic costs. Targeted preventive measures can ensure that wildlife and rural life coexist. Last but not least, any damage caused by a ‘big bad wolf’ on sheep, who has been ‘so bold’ as to ‘fool his drink’ (J. de Lafontaine, Le loup et l’agneau), must not be future or hypothetical (Case C-601/22, para. 44).
In addition, the fact that the wolf has been classified as a protected species (Annex V) instead of as a strictly protected species does not mean that unfettered national management practices are allowed. The controlled exploitation of Annex V species is more rigorous than it seems to be given that their ‘exploitation’ must be compatible with the objective of achieving their FCS (Art. 14(1) HD). In the case of the Iberian wolf, populations of which inhabit the area north of the river Duero and which, unlike wolves found on the territory of other Member States, may be subject to management measures, the Court of Justice has held that authorised hunting on part of Spanish territory (Castilla y León) could not undermine their FCS (C-436/22, para. 58; Opinion AG Kokott, point 71). In addition, management measures entail a continuous ‘surveillance’ of the protected species (Art. 14(2)). In this connection, the FSC must be assessed on a biogeographical scale that is broader than the region or Member State concerned (C-436/22, para. 65; see also C-601/22, para. 66). Finally, if there is any doubt as to the impacts of hunting practice on the conservation status of the large carnivore, the precautionary principle (Art. 191(2) TFEU) imposes strict management measures pending a more precise assessment of the management measures (C-436/22, para. 72). If the surveillance is not carried out properly, the Member State will not be able to invoke Article 14 HD to authorise the cynegetic exploitation of the wolf.
What will the practical consequences of the forthcoming legislative change be? In Member States where the FCSstatus is unfavourable (Belgium, the Netherlands, Denmark, Spain and France) hunting will still be prohibited,
save any recourse to strict derogations in cases involving damage to cattle (Art. 16(1)(b) HD). However, in Sweden, the government aims to halve the population of the endangered predator.
After the EU’s painful birth of an EU nature restoration law, which should prevent Noah’s Ark from becoming stranded, the downgrading of the wolf’s protection status – a symbol of our continent’s rewilding – will set a dangerous precedent. The ‘green’ image that the new European Commission is trying to project to the public risks being tarnished forever. But as we learn from the Jean de Lafontaine’ fable of 1688 Le Loup et l’Agneau, ‘the wolf always wins because of its strength’; or quite simply, ‘might is right’. Perhaps some food for thought.
Nicolas de Sadeleer is a full professor and Jean Monnet chair at UCLouvain, Saint-Louis.
Sadeleer, N.; “Downgrading of the Status of the Wolf: don’t crack a Nut with a Sledgehammer”, EU Law Live, 17/01/2025, https://eulawlive.com/op-eddowngrading-of-the-status-of-the-wolf-dont-crack-a-nut-with-a-sledgehammer/
Substantial Breach of Contract concluded with the EU Institutions by a Group of Economic Operators jointly and severally liable and the general Principle of personal Liability for financial Penalties (Case T-776/22)
Silvio Battista
Every year, institutions, agencies and other bodies of the European Union spend around 3 billion euros to buy goods, services and works of any kind.
The legal basis of the related procurement procedures is set out by the ‘Financial Regulation 2024/2509’ on the financial rules applicable to the general budget of the Union (repealing ‘Financial Regulation 2018/1046’), which is inspired by Directive 2014/23 on concession contracts and Directive 2014/24 on public procurement (see recital 154).
In the same way as the Directives, the Financial Regulation also sets out similar or identical grounds for exclusion of a tenderer (see Article 138 of the 2024 Financial Regulation and Article 136 of the previous Financial Regulation 2018) which, in comparison to the Directives, are all mandatory.
The claim for annulment discussed here (TP v Commission, T-776/22) is particularly interesting because the General Court interpreted the ground for exclusion provided for in Article 136(1)(e) of the 2018 Financial Regulation in relation to Article 57(4)(g) of Directive 2014/24.
In particular, the General Court had to establish whether that provision must be interpreted to mean that the finding by the judge having jurisdiction over the contract of a failure to comply with the contractual obligations attributable to a group of persons, entailing the joint and several contractual liability of each them, enables the authorising officer responsible to adopt an exclusion measure against one of those persons or whether it imposes an obligation to carry out an individual assessment of the conduct of the person concerned.
Background and Legal Context
In 2009, the European Commission launched a procurement procedure for the award of a public works contract concerning the modernisation of a facility. From the summary of the action it appears that the subject matter of the contract in question was the construction of sewerage and water distribution networks in the city of Famagusta (Cyprus).
The contract was awarded to a consortium formed by the applicant, TP, and its partner, jointly and severally liable to perform the contract.
After the completion of the works many defects were detected in the facility. Since it was not satisfied with the repairs carried out by the partner, the Commission issued the consortium with a notice of early termination of the contract, to which the consortium subsequently replied in the same fashion.
Since the attempts to settle the dispute with a dispute adjudication board failed, the Commission initiated arbitration proceedings before an arbitral tribunal established under the auspices of the International Chamber of Commerce (ICC).
The arbitral tribunal ascertained that there were 6,757 defects resulting from the work, the majority of which attributable to the consortium, and qualified the conduct of the consortium as grossly negligent. Consequently the arbitral tribunal ordered the applicant, TP, and its partner to jointly and severally pay damages to the European Union for an amount equal to the costs necessary to repair the facility.
The arbitral tribunal did not distinguish the individual liability of each partner. In any case, the summary of the action shows that TP had a subordinate role in the execution of the project, with a limited contribution to it.
In October 2022, the Commission, upon a recommendation by the interinstitutional panel established pursuant to Article 143 of the 2018 Financial Regulation - whose task, according to recital 38, is to assess requests on the need to take decisions on exclusion and imposition of financial penalties referred by the Union institutions and bodies - decided to exclude TP for a period of two years from participating in the EU institutions’ contracts award procedures and grant award procedures funded by the EU general budget, for failure to comply with the main obligations of the contract at issue (according to Article 136(1)(e) of the 2018 Financial Regulation).
In adopting the exclusion measure against TP, the Commission merely relied on the finding by the arbitral tribunal that the group members were jointly and severally liable, without actually conducting a specific and individual assessment of its conduct.
Therefore, TP brought an action under Article 263 TFEU for the annulment of the decision before the General Court of the European Union.
The General Court’s Reasoning
In the first part of its reasoning the General Court considers that in the circumstances provided for in Article 136(1)(e) there is no automatic link between the finding made by the arbitration tribunal ruling on the contract and the adoption of an exclusion measure by the authorising officer responsible, since the latter must make an independent legal classification of the conduct of the person concerned on the basis of the specific criteria laid down in that provision.
According to the General Court, Article 136(1)(e) of the 2018 Financial Regulation: ‘does not provide that any failure to comply with a contractual obligation automatically leads to the adoption of an exclusion measure. That provision refers to showing “significant deficiencies” in complying with “main obligations”. These are additional
conditions imposed specifically by the Financial Regulation for the adoption of an exclusion measure. The existence of such conditions, which do not follow from the contract or from the law applicable to it implies that what is at issue, in such a situation, is a legal classification of the facts made by the authorising officer responsible, which is distinct from that made, where appropriate, by the court having jurisdiction over the contract’ (see paras. 40 and 41).
In addition, the terms of this provision are sufficiently imprecise to leave a margin of discretion to the authorising officer responsible (see para. 42).
From a systematic standpoint the General Court’s finding is corroborated by the circumstance that Article 136(1) (e), unlike the grounds for exclusion provided for by Articles 136(1)(b) to (d) and (f) to (h), refers directly to the conduct of the economic operator and not to the final administrative decision or to the final judgment of a distinct authority (see paras. 44 to 47).
Article 136(2) confirms that the findings made in the final administrative decision or the final judgment are binding on the authorising officer responsible only in the cases referred to in Articles 136(1)(c), (d) and (f) to (h).
The conclusion is further substantiated by the fact that exclusion measures and financial penalties (established by ‘the 2002 Financial Regulation’ and detailed by the 2018 Financial Regulation) are part of an autonomous legal regime which pursues specific objectives of public interest distinct from the protection and compensation of the parties to the contract which a system of contractual liability seeks to ensure (see para. 59).
The General Court’s scrutiny continues in order to determine if the independent assessment of the authorising officer must be individual, focusing on the conduct of the person concerned.
The Court states that the authorising officer responsible must carry on a specific and individual assessment in the light of all the relevant factors.
In fact, the wording of Article 136(1)(e) indicates that it is the ‘person’ or ‘entity’ that has failed to comply with its contractual obligations that is excluded (see para. 62).
The Court’s line of argumentation follows with the analogous application of the Court of Justice’s case-law relating to the parallel provision of Article 57(4)(g) of Directive 2014/24 which sets out an optional ground for exclusion for the same circumstances (see para. 63).
In interpreting Article 57(4)(g) of Directive 2014/24 the Court of Justice stated that in order to observe the essential characteristics of the optional ground for exclusion laid down by that provision and the principle of proportionality (referred to in Article 18(1) of the Directive), before the inclusion of an economic operator which was a member of a group in the list of unreliable suppliers, all the relevant factors adduced by that operator must be the subject of a specific assessment (see HSC Baltic and Others, C-682/21, paras. 46 and 47).
In the same judgement the Court of Justice held that the Member States may provide for a presumption that any economic operator, ex lege responsible for the proper performance of a public contract, shall be deemed to have contributed to the significant or persistent deficiencies in the performance of a prior public contract which resulted in its early termination (see para. 48).
The Court of Justice nevertheless stated that, where that contract had been awarded to a group of economic operators, whose individual contributions to those deficiencies were not necessarily identical, such a presumption had to be rebuttable (Latin: praesumptio iuris tantum). The application of the ground for exclusion laid down in the said provision must be based on the wrongful or negligent nature of that individual conduct (see paras. 48 and 49).
In the light of these elements, the General Court observes that the obligation to conduct a specific and individual assessment applies a fortiori in the context of the 2018 Financial Regulation, where, as illustrated above, there is no automatic link between the finding made by the court having jurisdiction over the contract and the adoption of an exclusion measure and where the exclusion penalty has a punitive nature (see Vialto Consulting v Commission, C-130/23, para. 31).
Furthermore, it is necessary to comply with the fundamental general principle that penalties should be applied only to the offender (see Eni v Commission, C-508/11 P, para. 50).
The General Court points out that the institution or body concerned is in the position to assess the individual conduct of each group member since it can demand the identifiability of the performance to be carried out by each participant and ask the persons concerned to forward the documents of the contract implementation (see paras. 76 and 77).
When it is impossible to distinguish between the liability of each of the participants in a complex group, the institution or body concerned will always have the possibility to explain this situation before the EU judiciary. However, it must show that it at the very least attempted to carry out an individual assessment of the person concerned.
In the light of the above, the decision of exclusion was annulled and the Commission was ordered to pay the legal costs.
Concluding Remarks
In conclusion, it is recalled that the fundamental principle of personal liability for financial penalties has already been used by the Court of Justice in EU public procurement law - together with the principle of proportionality - in the case of exclusion of all of the members of a group of economic operators where a group member has submitted false information (Klaipėdos, C-927/19, see paras. 156 and 157).
By paying particular attention to this landmark judgment the Commission could have avoided infringing Article 136(1)(e) of the 2018 Financial Regulation, which has led to the annulment of its decision.
Luckily, the sanctioning power of the Commission has not been exhausted, providing an opportunity for more precise action (see Article 139(2) of the 2018 Financial Regulation).
Silvio Battista is an Italian lawyer specialising in EU public procurement law and EU funding. He provides advice and assistance to public entities in the preparation of procurement procedures and economic operators which intend to participate in tenders both at national, EU and international level. He graduated with honours at the University of Bologna School of Law where he also obtained an LLM in tax law.
Battista, S.; “Substantial Breach of Contract concluded with the EU Institutions by a Group of Economic Operators jointly and severally liable and the general Principle of personal Liability for financial Penalties (Case T-776/22”, EU Law Live, 13/01/2025, https://eulawlive.com/analysis-substantialbreach-of-contract-concluded-with-the-eu-institutions-by-a-group-of-economic-operators-jointly-and-severally-liable-and-the-general-principle-ofpersonal-liability-for-f/
‘Safe Third Countries’. Before the Court of Justice (C-406/22): Was Another Reading Possible?
Francesco Munari 1
In CV v Ministerstvo vnitra České republiky et al 2 the Court was called upon to decide on certain issues relating to the granting and revocation of refugee status, as governed by Directive 2013/323, in particular the notion of safe country of origin. As most people know, when a person seeking international protection comes from a country considered safe, their application may be decided by means of a simplified procedure, and in the meantime the applicant may not be allowed to remain in the territory of the Member State.
In this case, the State of origin of the applicant for international protection was Moldova, recognised by the Czech Republic as safe, except for a part of its territory, Transnistria, which is problematic due to heavy Russian interference. For reasons related to the energy crisis, Moldova has also suspended the application of the ECHR in its territory, to which it is a contracting party, having invoked the so-called state of emergency pursuant to Article 15(2) ECHR.
The three questions referred by the national court were the following: whether a State which has declared a state of emergency under Article 15(2) ECHR automatically loses its status as a safe country; whether the Member States are precluded from regarding a country as safe only in part, i.e. with territorial exceptions; and finally, if the answer to one of the preceding questions is in the affirmative, whether the national court, when hearing an appeal against a decision rejecting an application for international protection examined under the fast-track regime applicable to applicants from safe countries of origin, should find that there have been substantial breaches of the procedure adopted by the Member State, even if this issue was not raised by the applicant.
The Court answered the first question rather bluntly, excluding the automatic effects of the declaration of a state of emergency pursuant to Article 15(2) ECHR on the qualification of a country as safe. Instead, after a lengthy digression, it ruled out the possibility that the provisions of Directive 2013/32 allow Member States to proceed with a partial designation of a country as safe. After this affirmative answer to the second question, it also held that that such designation constitutes a substantial breach of the directive, which the national court is required
1. Francesco Munari is full professor of EU law at the University of Genoa. His main interests concern EU law, with a focus on competition and market regulation, environment, monetary union, migration, port, maritime and transport law (see his publications here). He is or has been an aggregate or visiting professor at several universities, including the World Maritime University, LUISS, the Università Cattolica del Sacro Cuore, the Université Panthéon-Assas. In 2014, he was awarded a Jean Monnet Chair in EU Environmental Law. A previous version of this Long-Read has appeared in Italian in rivista.eurojus.it, Fascicolo n. 4 – 2024 ‘Le torri (d’avorio?) di Kirchberg: rifessioni a margine della sentenza CV c. Ministerio dell’Interno della Repubblica Ceca’.
2. Judgment of the Court of Justice of 4 October 2024, CV v Ministerstvo vnitra České republiky et al. (C-406/22, EU:C:2024:841). For a first comment on this judgment see also Di Pascale, A.; “Safe Countries of Origin: whose Margin of Appreciation? (Case C-406/22, CV) and its Impact on the Application of the Italy-Albania Protocol”, EU Law Live, 16/12/2024.
3. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), OJ 2013 L 180, p. 60.
to establish ex officio, pursuant to the principles of effective judicial protection enshrined in Articles 46 of the Directive and 47 of the Charter.
Yet, this judgment does not appear convincing; above all, it overlooks the delicate dynamics characterising the European Zeitgeist on migrants.
Migration in the EU: Between Perceived Reality and True Data.
For many years migration has been putting the Union under heavy pressure. For instance, one of the main reasons for Brexit was that of the alleged (excessive) entry of foreigners into the UK. Furthermore, the inadequacy of the Dublin regime in the face of migratory flows from the south and east has resulted in strains among Member States, and a widespread negative perception of Europe and the Union, both by the so-called Member States of first entry and by the others: the former, because they feel they have been abandoned by their European partners; the latter, because they fear that the EU rules, namely the so-called Schengen area, would enormously amplify –apparently eluding the Dublin regulation– the influx of third-country nationals from (first entry) Member States. Thus, border controls have been from time to time reintroduced, or even abused.4
Above all, the migration issue is the perfect fuel for populist and anti-European voices, which inject toxins into public opinion with a virulence unprecedented in EC/EU history. Moreover, the narrative concerning the ‘fear’ of migration is neither conditioned by statistics, by the level of truth or reliability of (sometimes frankly abhorrent) information, nor by the insights provided by those who rightly warn that a substantial share of foreigners is necessary for the economies of many European States. The ‘naïve’ view of information, according to which knowledge of real data or events brings people closer to the truth, unfortunately no longer stands the test of facts.5 And the jurists must also come to terms with this perceived reality.
Beyond perceptions, according to the International Organization for Migration6 (IOM), the number of migrants in the world has tripled since 1970 and has almost doubled since 1990. In 2020 there were 281,000,000 migrants in the world; however, destinations are not equally distributed: Europe (not only the EU) is in fact the main destination for people on the move, with 86,700,000 people in 2020, equal to about 30% of all migrants (including intra-EU movements).7
In the EU, there are currently about 28,000,000 migrants from third countries, and about 42,500,000 people were born outside the EU and have been naturalised.8 This percentage is substantially higher than the world one and does not even consider EU citizens established in another Member State.9 These latter citizens, moreover, have different levels of integration in the population of the individual Member States, determined by the time in which each of them joined the EU.
4. Advocate General Saugmandsgaard’s Opinion of 6 October 2021 in NW (Joined Cases C 368/20 and C 369/20, EU:C:2021:821).
5. Yuval Noah Harari, Nexus: A Brief History of Information Networks from the Stone Age to AI, Random House, 2024.
6. World Migration Report 2024, International Organization for Migration.
7. Migration and asylum in Europe – 2023 edition, Eurostat, 2024.
8. Statistics on migration to Europe, European Commission, 5 November 2024.
9. Migration and asylum in Europe – 2023 edition, Eurostat, 2024.
In 2022 alone some 5,100,000 people entered the EU.10 The number of foreigners legally admitted to the EU has gone from 1,759,841 people in 2014 to 3,741,015 in 2023. Moreover, with the exception of 2020 due to the COVID pandemic, year after year the increase in legal migrants is constantly growing.11
Taking the figures of 2023,12 applications for international protection in the EU have almost tripled since 1990, and almost doubled since 2020, with some 75% of them concentrated in Germany, France, Spain, Italy and Greece, while elsewhere there are essentially no applications (e.g. Hungary with 30 applications in 2023).
In 2022, about 300,000 persons were granted refugee status13 out of over 960,000 requests.14 In 2021 this was less than 200,000 and in 2023 over 350,000.
The total number of refugees worldwide is 35,300,000,15 including some 5,900,000 Palestinians seeking refuge in neighbouring Middle Eastern countries and 4,200,000 Ukrainians fleeing the war. One out of 9 migrants is a refugee. Excluding Ukrainians, about 3,800,000 refugees live in the European Union and represent 14% of resident third-country nationals.16 At present, after the Ukrainian crisis, 20-25% of all world refugees live in the Union.
The number of irregular immigrants is higher than that of refugees: excluding people who absconded upon their entrance to the EU, in 2023 the Member States’ authorities identified 1,265,000 people illegally present on the territory, rejected about 120,000 people at the border, and expelled about 118,000.17
The ‘Safe Third Country’
The above data highlights that, beyond real or induced perceptions, the phenomenon has considerable substance, especially in its prospective vision. The efforts made by Member States to welcome third-country nationals, both economic migrants and applicants for international protection, appear to be steadily growing over the years. That said, within the EU the situation is not encouraging: the management of external borders and the related burdens remains somehow a ‘shared’ competence, which lacks solidarity and is characterised by fragmentary ‘second-best’ solutions. It is thus for the jurists to strive to find a systematic coherence.
In particular, and to get closer to the issues covered by CV, in relation to the right to remain in the Member State where the request for international protection was lodged and the prohibition of restricting the personal freedom of asylum seekers during the examination period of the requests (C-601/15 PPU),18 a six-month maximum time limit for processing them is generally established by Article 31 Directive 2013/32, even though it is hardly ever
10. Migration and migrant population statistics, Statistics Explained, Eurostat, March 2024.
11. Statistics on migration to Europe, European Commission, 5 November 2024.
12. Asylum applications in the EU, European Council/Council of the European Union, Infographics, 11 April 2024.
13. Asylum decisions - quarterly statistics, Statistics Explained, Eurostat, 9 December 2024.
14. Asylum applications in the EU, European Council/Council of the European Union, Infographics, 11 April 2024.
15. World Migration Report 2024, International Organization for Migration, Chapter 2, Refugees and Asylum Seekers.
16. World Migration Report 2024, International Organization for Migration, Chapter 2, Refugees and Asylum Seekers.
17. Enforcement of immigration legislation statistics, Statistics Explained, Eurostat, 30 April 2024.
18. Judgment of the Court of Justice of 15 February 2016, JN v Staatssecretaris voor Veiligheid en Justitie (C 601/15 PPU, EU:C:2016:84).
met due to the number of applicants.19 Within this time period applications for international protection must be subject to an ‘appropriate examination’, pursuant to the criteria established by Article 11 ff. of the Directive.
The rules in question are considerably simplified if the applicant comes from a so-called safe country. The notion of safe country therefore assumes crucial importance: firstly, it allows applications for international protection to be assessed according to principles of proportionality and adequacy, which in turn is also useful in allowing a more in-depth and nevertheless timely examination of requests from persons coming from countries not considered safe, especially in a situation where the number of pending asylum applications in the Union has doubled20 and is steadily growing post-COVID, as is the duration of investigations. Secondly, it becomes a probable ‘pivot’ on which to distinguish migrants entitled to remain in the territory of the Member States from others. Thirdly, for foreign applicants from these third countries, the possibilities of staying on the territory of the Member States, and of receiving the relevant reception, are significantly reduced until the validity of their application for protection is definitively established.
Not surprisingly, the Procedures Directive deals extensively with the notion of ‘safe country’, breaking it down into ‘safe country of origin’ (Articles 36 and 27), ‘safe third country’ (Article 38) and ‘safe European third country’ (Article 39): in essence, a country is ‘safe’ when there is no risk of persecution or serious harm within the meaning of Directive 2011/9521 (Qualification Directive) against an asylum seeker, or, if the country is not the country of nationality of the applicant, if in that country the person will not suffer persecution, serious harm or inhuman and degrading treatment in accordance with international standards, nor will he be subject to ‘refoulement’ to unsafe countries. Ultimately, if the asylum seeker does not risk persecution or serious harm in any such third country, his asylum application will be expedited, simplified, will take place at the border or in other transit zones, and will frequently be rejected. This, however, is consistent with the rule of customary international law according to which States tend to be free to admit foreigners to their territory or not, except for persons in need of international protection under the Geneva Conventions.
A State is considered safe in the light of objective criteria and evaluations, which are the responsibility of the Member States, who are required to periodically update their assessments and keep the Commission informed.
The Interpretation of ‘Safe Country of Origin’ in C-402/22…
In the case at hand, the applicant, a Moldovan national, stated that he had entered the Czech Republic in 2016, with a false passport, after receiving threats and attacks in his country of origin, as a witness to a serious road accident. He had complained that the police authorities had not identified the responsible persons. After having submitted a request for asylum in 2022 before the Czech authorities, CV declared his refusal to return to
19. Asylum Report 2023, European Union Agency for Asylum, Section 4.4.10.
20. Asylum applications - monthly statistics, Statistics Explained, Eurostat, 5 December 2024.
21. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of thirdcountry nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ 2011 L 337, p. 9.
Moldova because of the war in Ukraine. The Court noted that Moldova is not affected by the conflict,22 nor that CV could run any risk of persecution in Moldova because of his personal position.23 Tellingly, on the basis of the information available to the Court, it seemed rather easy to agree with the decision of manifest groundlessness of the application for international protection submitted by CV, on which the Czech Ministry had ruled.
Instead, without even considering issues of receivability of questions 2 and 3 that indeed seemed to be serious,24 the Court held that Article 37 of the Procedures Directive does not allow Member States to designate a third country as a safe country of origin with the exception of certain parts of its territory. In order to reach that conclusion, in the absence of any express indication contained in the provision in question, the Court develops a reasoning entirely internal to the Directive, on the basis of ‘the wording [of Art. 37], … of its context, of the objectives pursued by the legislation of which it forms part and, where appropriate, of its origins’, by assessing both Annex I to the Directive, the positions adopted by the Commission in the context of the legislative navette concerning Directive 2013/32, and the previous Procedures Directive, namely the repealed Directive 2005/85,25 which instead provided for the option exercised by the Czech legislature.
Furthermore, assuming that the accelerated procedures constitute a ‘special regime’ as compared with the ‘general’ regime’ applicable to unsafe non-member States, the Court considers that allowing a designation such as that of the Member State concerned ‘would infringe the restrictive interpretation to which derogating provisions must be subject’ . 26
Nor is it relevant that in the new ‘migration package’, as per Regulation 2024/1348,27 Directive 2013/32 is repealed taking effect from 12 June 2026 and it is (expressly and again) provided that the designation of a third country as a safe country of origin at both EU and national level may be carried out with exceptions for certain parts of its territory. According to the Court, ‘it is the prerogative of the EU legislature to go back on that choice, by carrying out a new balancing exercise’, and yet that fact ‘supports the interpretation according to which the EU legislature did not provide for that option in Directive 2013/32’.28
With all due respect, the Court’s reasoning does not seem to be free from elements worth criticising.
… and its Shortcomings
First, no one contests the need to consider the ‘context’ in which the concept of safe country of origin is placed; yet, it would perhaps have been preferable not to limit ourselves to a ‘vertical’ examination of the Qualification
22. Judgment of the Court of Justice, CV, para 35.
23. Judgment of the Court of Justice, CV, para 36.
24. Francesco Munari, ‘Le torri (d’avorio?) di Kirchberg: riflessioni a margine della sentenza CV c. Ministero dell’Interno della Repubblica Ceca’, Eurojus.it rivista, 2 December 2024.
25. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ 2005 L 326, p. 13.
26. Judgment of the Court of Justice, CV, para 71.
27. Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, OJ 2024 L 1348.
28. Judgment of the Court of Justice, CV, para 82.
Directive, and rather conduct a systematic interpretation, extended to all the relevant rules in the field. Such an interpretation, undisputed since CILFIT,29 has been moreover applied also to asylum cases.30 Had this form of interpretation been followed, a different solution would have been (easily) obtainable in the light of the Qualification Directive: Article 8 of that Directive even allows Member States to exclude international protection if ‘in a part of the territory of the country of origin’ there is no risk of persecution or serious harm. This proviso seems to capture the situation of CV, and the lack of attention paid to it does not seem consistent with an interpretation of relevant EU law that requires one rule to be interpreted also by means of the others.31 Conversely, the solution provided by the Court risks causing an aporia in the system, because even in cases such as ours it requires Member States to carry out the procedure provided for problematic situations, only to be able to reject the request for international protection precisely because in some parts of the territory of the country of origin there is no risk of persecution or serious harm.
Also criticisable is the second assumption made by the Court, i.e. that the accelerated procedure would be ‘derogatory’ from that provided for ‘unsafe’ third countries. In reality, looking at (a) the significant growth in asylum applications as a whole and the difficulties of the Member States in processing applications for international protection within the time limits provided for by the directive, and (b) the regulatory provision of guarantees also with respect to foreigners coming from safe countries, it would seem more persuasive to read the two paths ‘ordinary’ and ‘accelerated’ not in relation to each other as a rule with an exception, but as (a) alternatives according to the different situations, (b) functional to ensure a proportionate allocation of the resources dedicated to the examination of the applications that the Member States are required to examine, and, ultimately, (c) more respectful of the rights of individual applicants and the objectives of speed required by the system. Besides, this interpretation seems suggested by the Italian Corte di Cassazione in a more recent judgement32.
Finally, the refusal by the Court to consider the regime established by the new Regulation 2024/1438 seems unconvincing in light of the theory of consistent interpretation, to which the Court has accustomed us with respect to rules that are not yet effective but already in force. Admittedly, the aforementioned regulation will be applicable only from June 2026; however, being in force already, it should impose itself on the national court as an interpretative source as of 23 May 2024.33
Conversely, the result reached by the Court ends up requiring the national court to disapply its domestic law (even though this is already consistent with Regulation 2024/1348), which will however only be temporary, since it will shortly be EU law itself that will confirm a reading of the concept of the safe country of origin in accordance with the provisions of Czech national law. This also has undesirable effects on the other standstill obligation incumbent
29. Advocate General Capotorti’s Opinion of 13 July 1982 in CILFIT v Ministry of Health (C-283/81, EU:C:1982:267).
30. Judgment of the Court of Justice of 16 January 2024, WS (C 621/21, EU:C:2024:47); Judgment of the Court of Justice of 17 February 2009, Elgafaji (C-465/07, EU:C:2009:94); Judgment of the Court of Justice of 30 April 2024, M.N. (C 670/22, EU:C:2024:372); Judgment of the Court of Justice of 5 September 2024, Banco Santander (Joined Cases C 775/22, C 779/22 and C 794/22, EU:C:2024:679).
31. Koen Lenaerts and José A. Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, EUI Academy of European Law Working Paper 2013/9.
32. Judgment of the Corte di Cassazione of 19 December 2024, no 33398, at 11.
33. Cf. Advocate General Tizzano’s Opinion of 30 June 2005 in Mangold v Helm (C-144/04, EU:C:2005:420, para 117).
on national courts with respect to EU rules already in force but not yet applicable, and which requires them not to generate situations that are contradictory to the objectives pursued by those rules.
In short, the Court’s approach does not seem to help settle the overall problematic framework characterising the subject matter and the application of its rules, an activity which the administrations and judges of the Member States are engaged in daily.
Some Concluding Remarks
Firstly, notwithstanding the preliminary ruling, it is likely that the decision refusing international protection issued against CV will be confirmed. Certainly time will pass and in the meantime CV will be able to remain in the territory of the Czech Republic. That being said, if the purpose of the rules in question is to manage the growing applications for international protection, which the Member States are required to process with reasonable speed and adequate – i.e. proportionate – guarantees, i.e. suitable for ensuring conditions of equal rights and dignity to the foreigners concerned, then perhaps the ruling does not help.
Secondly, it is necessary to be very precise and to interpret the Court’s answer to the third question as merely a confirmation of an obligation on the part of the national court to establish substantial infringements of the procedures for examining applications for international protection. Such an obligation, in and of itself, hardly appears to be contestable, but it would be rather improper to assume that, as far as the powers of the national court are concerned, the judgment wants to go beyond that. The procedures for examining applications for international protection are the responsibility of the Member States’ administrations, which follow precise indications and constraints established by EU law and national transposition rules. In relation to the decisions adopted, the review of judges appears to be aimed at verifying compliance with the rules and procedures, and the Court tells us that substantial violations of the same can also be detected ex officio. However, everything that does not correspond to the violation of the principle of legitimacy identified above must remain firm, for the sake of not derailing the system. To this end, the Corte di Cassazione has suggested that the judge is obliged to take into account the designation as a safe country made by the States’ administrations so long as such designation appears ‘manifestly inconsistent’ with the criteria laid down by the EU or national legislation34, or when ‘overcomes the external boundaries of reasonableness and has been done in a manifestly arbitrary manner, or when has become ictu oculi no longer consistent with the actual situation’35 .
In particular, it seems frankly unfounded to infer from the judgment the opening of room for interpretation for national courts with regard to the concept of safe third countries, which would allow them to identify further cases in which to depart from the assessments made ‘by the Member States’ (i.e. the national legislature, the government, or the competent administrations appointed for this purpose by them). It is therefore highly perplexing what some authors have argued, namely that a third country is never considered safe except in its entirety even with
34. See judgment no. 33398/2024, above note 32.
35. Order of 30 December 2024 no 34898, at 34 (translation by the author).
respect to all the people who are nationals of it or come from it.36 Such a reading appears clearly to be in contrast with the rationale of the institution of international protection, which is guaranteed by reason of ‘the individual situation and personal circumstances of the applicant’ (Art. 4(3)(c) of the Qualification Directive). And certainly the Court, in the unfortunate answer to the second question referred for a preliminary ruling, does not seem to have decided to distort also the structure of the legislation under consideration here, which recognises a right to judicial protection for the interested parties, not also a right to demand subjective interpretations from the judges as to the characteristics of the countries of origin of the asylum seekers.
In fact, also the Italian Corte di Cassazione37 has rejected this interpretation, and has suggested the Court to consider its view as a contribution to the ‘dialogue’ between national judges and the Court when the latter shall address this issue on occasion of the next preliminary ruling expected to be pronounced upon request by several Italian courts38
The above perspective is confirmed by Article 61 of the new Procedures Regulation which allows Member States (and also the Union), to designate ‘a third country as a safe country of origin ... with exceptions for certain parts of its territory or clearly identifiable categories of persons’. Enhanced via judgments such as C-621/21,39 this provision confirms the principle that a country can remain safe for some categories of people even if it is not so for all, in line with the notion of refugee, which has always required the identification of a persecution ‘for reasons of race, religion, nationality, political opinion or membership of a particular social group’, and not for the mere ‘origin’ from a particular State. On the other hand, we avoid falling into the otherwise inevitable Hegelian night, in which not only the cows are all black, but the status of foreigners who present themselves at the EU’s external borders is obscured with great confusion, to the detriment of the effectiveness of the asylum policy itself, which we have seen is already under considerable pressure.
Let’s try to draw some conclusions. The judgments of the Court of Justice are binding on national judges, who cannot escape the primacy of EU law and the effects of preliminary rulings without incurring their own liability and that of the Member State to which they belong, and without the Member States having any power to ‘sanction’ them for having disapplied domestic law deemed to be in conflict with European Union law.40
Precisely for this reason, the Court is required to take on the responsibility of assessing what consequences its preliminary rulings may have, even more so in sectors characterised by high political sensitivity, and related conflicts, not only political.
In these areas, the interpreter of the rule should assume in principle its conformity with the system, which should not be evaluated exclusively with respect to the particular situation, and therefore to the rights of the individual, but with a careful look also at the consequences in general of the rights of all as allocated overall by the legislator, national or European.
36. Marco Borraccetti, ‘Il trattenimento off-shore negato: prime note sull’ordinanza del Tribunale di Roma, con uno sguardo al futuro’, Eurojus.it rivista, 4 November 2024.
37. Order no 34898/2024, above note 35.
38. The cases are numbered as C-758/24 and C-759/24
39. Judgment of the Court of Justice of 16 January 2024, WS (C 621/21, EU:C:2024:47).
40. Advocate General Collins’ Opinion of 20 January 2022 in RS (C 430/21, EU:C:2022:44).
The historical and quantitative evolution of the movements of people in the world and in Europe, and of those who request international protection, poses a challenge to us jurists. It is necessary to ask ourselves how to reasonably protect the individual rights of people, in a situation in which, however, it is necessary to take into account not only other rights and prerogatives in some way opposed to the former, but also to bear in mind that the very application of identical procedures to different situations risks jeopardising the position of those most in need . The reception of refugees and migrants does not end with the mere entry into the territory of a Member State, or with their stay there pending a final decision on the status of the person concerned. It requires, in the best interests of those persons, the implementation of integration policies affecting public, administrative and financial resources.
Not only that: these policies compete with others, and in any case require that, in the interest of European citizens, migrants (whom we certainly need) integrate quickly and contribute to the satisfaction of their needs but also of the society that has welcomed them. In this situation, it is essential to be able to effectively apply the criteria for accepting foreigners or not, because this conditions the relative choices, timeframes and costs that must remain under the control of those responsible, according to the standards set by the regulations. In the light of the principle of sincere cooperation, the judicial function also needs to consider these aspects.
From this point of view, the judgment in CV v. Ministry of the Interior probably appears to be too focused on the individual situation of the applicant, and less on that of the Member State concerned. In doing so, however, there is a risk of complicating the necessary dialogue that must exist between institutions in the common interest, and above all this same dialogue risks being jeopardised also within the Member States. The Court will soon have other opportunities to further focus these topics which, at least in some member States, has created tensions between the governments and the judiciary41. The matter is therefore still ongoing.
41. Di Pascale, above note 2.
HIGHLIGHT F THE WEEK S O
General Court to hear Yanukovych against Council cases: Challenge to EU sanctions over procedural errors
Monday 13 January
Official publication was made of cases Yanukovych v Council (Case T-583/24) and Yanukovych v Council (Case T-590/24), both involving legal actions against the Council of the European Union regarding restrictive measures applied under Council Decision (CFSP) 2024/2456 and Council Implementing Regulation (EU) 2024/2455.
Read on EU Law Live
General Court to clarify VAT exemption for independent groups: Preliminary ruling request published in OJ
Monday 13 January
The Swedish Supreme Administrative Court (Högsta förvaltningsdomstolen) referred questions to the General Court concerning the interpretation of Article 132(1)(f) of the VAT Directive, in a dispute between the Swedish Tax Agency (Skatteverket) and the Studieförbundet Vuxenskolan Riksorganisationen.
Read on EU Law Live
Austrian court seeks EU Guidance on gaming judgments and recognition rules: preliminary ruling request, published in OJ
Monday 13 January
On October 16, 2024, the Handelsgericht Wien (Commercial Court of Vienna) referred several questions to the Court of Justice of the European Union (CJEU) regarding the interpretation of Regulation (EU) 1215/2012, specifically in the context of cross-border recognition and enforcement of judgments related to gaming services.
Read on EU Law Live
Actions against Commission’s decisions authorising COVID-19 compensation schemes to airlines operating with an Italian license, published in OJ
Monday 13 January
Official publication was made of two actions brought by Ryanair Designated Activity Company against the European Commission, seeking the annulment of two State aid measures adopted in the context of the COVID-19 pandemic: Ryanair Designated Activity Company v Commission (T-538/24) and Ryanair Designated Activity Company v Commission (T-539/24).
Read on EU Law Live
Preliminary reference seeking clarification of ‘isolated generation site’ and ‘direct line’, under Article 2 of Electricity Directive
Monday 13 January
A request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia) lodged on 23 October 2024 in SIA ‘Elektro bizness’ v Sabiedrisko pakalpojumu regulēšanas komisija, concerning a dispute over the applicant’s right to construct a direct electricity line connecting a 20-kilovolt underground cable line owned by the applicant to the premises of a customer that is an agency of the Municipality of Ogre, was published in the OJ: Elektro bizness (C-722/24).
Read on EU Law Live
IMG appeals General Court rulings over eligibility and damages: official publication today
Monday 13 January
In November 2024, the International Management Group (IMG) filed appeals with the Court of Justice of the European Union (CJEU) against two judgments delivered by the General Court in September 2024 concerning their disputes with the European Commission. These cases involve complex legal issues relating to the EU’s financial rules and principles governing legal proceedings.
Read on EU Law Live
Preliminary reference on the compatibility with the freedom of services and establishment of Hungarian law obliging businesses to apply predetermined sale prices
Monday 13 January
Official publication was made of a preliminary reference from the Győri Törvényszék (Hungary) lodged on 9 October 2024 in Penny Market Kft. v Komárom-Esztergom Vármegyei Kormányhivatal, a case concerning the judicial review of a claim for the annulment of a decision imposing a fine in relation to consumer protection: Penny Market (C-658/24).
Read on EU Law Live
Switzerland invited to join EU’s PESCO ‘Military Mobility’ project
Tuesday 14 January
The Council authorized Switzerland’s participation in the PESCO project ‘Military Mobility,’ following Switzerland’s September 2024 request, thus allowing The Netherlands, as project coordinator, to formally invite Switzerland to join the initiative after confirming that Switzerland meets the conditions set out in Decision (CFSP) 2020/1639.
Read on EU Law Live
Commission provisional anti-dumping measures on imports of lysine and certain flat-rolled products of iron and steel from China, officially published
Tuesday 14 January
Official publication was made of two Commission Implementing Regulations imposing provisional anti-dumping duties on imports of lysine and at-rolled products of iron or non-alloy steel plated or coated with tin originating from the People’s Republic of China: Commission Implementing Regulation (EU) 2025/81 of 13 January 2025 and Commission Implementing Regulation (EU) 2025/74 of 13 January 2025.
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Regulation (EU) 2025/11 of 19 December 2024 amending Regulation (EU) 2018/1806 as regards Vanuatu, published in OJ
Tuesday 14 January
Official publication was made of Regulation (EU) 2025/11 of the European Parliament and of the Council of 19 December 2024 amending Regulation (EU) 2018/1806 as regards the reintroduction of a visa requirement for nationals of Vanuatu.
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Court of Justice to stream hearing of preliminary reference on the interpretation of ‘purpose of pastiche’, under the Copyright Directive
Tuesday 14 January
The Court of Justice’s Grand Chamber hearing in Pelham (Notion de “pastiche”) (C-590/23), a case concerning a preliminary ruling request on the interpretation of Article 5(3)(k) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, was streamed on the Court’s website.
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AG Emiliou’s Opinion on adequate minimum wages Directive: incompatible with Article 153(5) TFEU and with the principle of conferral laid down in Article 5(2) TEU
Tuesday 14 January
Advocate General Emilou delivered his Opinion in Denmark v Parliament and Council (Salaires minimaux adéquats) (C19/23) concerning whether Directive (EU) 2022/2041 on adequate minimum wages (AMW Directive) infringes the EU’s competences under Article 153(5) TFEU, which excludes “pay” from EU social policy jurisdiction.
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Single Resolution Board: No compensation is due to the shareholders affected by the resolution action concerning Sberbank banka d.d. and Sberbank d.d.
Tuesday 14 January
The Single Resolution Board (SRB) determined that no compensation is owed to the shareholders of Sberbank banka d.d. and Sberbank d.d. after their resolution actions, since they were in a better position under the resolution than they would have been in a normal insolvency process.
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Commission to consider tackling discrimination in China’s public procurement market for medical devices
Tuesday 14 January
A report was published finding discrimination against EU medical devices in China’s public procurement market.
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General Court upholds restrictive measures against Russian mobile telephone operator MegaFon for supporting Russian aggression
Wednesday 15 January
The General Court delivered its judgment in MegaFon v Council (T-193/23) confirming the restrictive measures adopted against the Russian mobile telephone operator MegaFon, for its alleged support of Russia’s military and industrial efforts in the war against Ukraine.
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Court of Justice to rule on compatibility with freedom of establishment of support and monitoring measures in relation to undertaking awarded with public tender
Wednesday 15 January
On the 13th of January, official publication was made of a request for a preliminary ruling from the Consiglio di Stato (Italy), lodged on 8 October 2024 in U.T.G. Prefettura di Bari, Autorità nazionale anticorruzione (ANAC) v Dmeco Engineering Srl, Regione Puglia, BG: Prefettura di Bari and ANAC (C-656/24).
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Regulation (EU) 2025/37 on managed security services and Regulation (EU) 2025/38 on cybersecurity solidarity (Cyber Solidarity Act), published in OJ
Wednesday 15 January
Official publications was made of Regulation (EU) 2025/37 of the European Parliament and of the Council of 19 December 2024 amending Regulation (EU) 2019/881 as regards managed security services and Regulation (EU) 2025/38 of the European Parliament and of the Council of 19 December 2024 laying down measures to strengthen solidarity and capacities in the Union to detect, prepare for and respond to cyber threats and incidents and amending Regulation (EU) 2021/694 (Cyber Solidarity Act).
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General Court dismisses Kantor’s action contesting Council’s restrictive measures against actions undermining Ukraine’s integrity, sovereignty and independence
Wednesday 15 January
The General Court delivered its judgment in Kantor v Council (T-748/22), a case concerning an action by Mr. Vyacheslav Moshe Kantor, seeking the annulment of several Council restrictive measures, adopted in relation to actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
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Commission publishes Recommendation requesting Member States to review outbound investments into non-EU countries
Wednesday 15 January
The European Commission published a Recommendation calling on EU Member States to review outbound investments of their companies into non-EU countries, particularly concerning high risk technology areas.
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Commission presents an EU action plan aimed at bolstering the cybersecurity of hospitals and healthcare providers
Wednesday 15 January
The European Commission introduced an EU action plan to enhance the cybersecurity of hospitals and healthcare providers, a key initiative under President von der Leyen’s political guidelines.
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European Court of Auditors’ Special Report 02/2025 highlights gaps in addressing urban air and noise pollution
Thursday 16 January
The European Court of Auditors’ published its Special Report 02/2025 evaluating the EU’s efforts to tackle air and noise pollution in urban areas, and finding gaps in understanding citizens’ exposure to harmful levels of noise, weakening measures to mitigate its impact.
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Commission anti-dumping measures on imports of certain pneumatic tyres and erythritol, published in OJ
Thursday 16 January
Official publication was made of three Commission Implementing Regulations imposing definitive anti-dumping duties on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, and of erythritol, originating from the People’s Republic of China: Commission Implementing Regulation (EU) 2025/58; Commission Implementing Regulation (EU) 2025/60; Commission Implementing Regulation 2025/61.
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Court of Justice finds tax treatment of Erasmus+ financial support to be incompatible with the right to move and reside freely in the Union
Thursday 16 January
The Fifth Chamber of the Court of Justice delivered its judgment in a case concerning a preliminary reference, by which the referring court sought the interpretation of Articles 18, 20 and 21 and the second indent of Article 165(2) TFEU, as well as of Article 67 of Regulation (EC) 883/2004 on the coordination of social security systems: Ministarstvo financija (Bourse Erasmus+) (C-277/23).
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Consumer associations and legal standing in financial disputes, clarified by Court of Justice
Thursday 16 January
The Court of Justice delivered its judgment in Banco de Santander (Représentation des consommateurs individuels) (C346/23) concerning a preliminary ruling request from the Spanish Supreme Court on whether consumer associations can represent individual members in disputes involving complex and high-value financial products under Directive 2004/39/EC, which governs financial instruments markets.
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Court of Justice finds tax treatment of Erasmus+ financial support to be incompatible with the right to move and reside freely in the Union
Thursday 16 January
The Fifth Chamber of the Court of Justice delivered its judgment in a case concerning a preliminary reference, by which the referring court sought the interpretation of Articles 18, 20 and 21 and the second indent of Article 165(2) TFEU, as well as of Article 67 of Regulation (EC) 883/2004 on the coordination of social security systems: Ministarstvo financija (Bourse Erasmus+) (C-277/23).
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AG Ćapeta: CAS awards must be open to full judicial review by national courts
Thursday 16 January
On 16th January, Advocate General Ćapeta delivered her Opinion in Royal Football Club Seraing (C-600/23), a request for a preliminary ruling from the Belgian Court of Cassation concerning the status of sport-related arbitration awards under Union law.
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Commission sends Supplementary Statement of Objections to Lufthansa highlighting intention to reinstate Condos’s access to feed traffic to and from Frankfurt airport
Thursday 16 January
On the 15th of January, the European Commission sent a Supplementary Statement of Objections to Lufthansa noting its intention to order the airline to reinstate Condor’s access to Lufthansa’s feed traffic to and from Frankfurt airport, to mitigate competition concerns relating to possible breaches of Article 101 TFEU and Article 53 of the EEA Agreement.
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ECtHR: Association confraternelle de la Presse Judiciaire v. France (no. 49526/15 and 13 other applications) concerning French intelligence-gathering laws inadmissible
Thursday 16 January
In its decision on the case Association confraternelle de la Presse Judiciaire v. France (no. 49526/15 and 13 other applications), the European Court of Human Rights (ECtHR) declared several applications inadmissible, involving allegations that French intelligence-gathering laws violated the right to privacy, freedom of expression, and access to an effective remedy.
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Court of Justice clarifies Articles 8 and 9 of Directive 2016/343 on the strengthening of the presumption of innocence and on the right to be present in criminal proceedings
Thursday 16 January
The Fourth Chamber of the Court of Justice handed down its judgment in Stangalov (C-644/23), a case concerning a preliminary reference on the interpretation of Articles 8(4) and 9 of Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, in conjunction with Article 47 of the Charter of Fundamental Rights, in the context of criminal proceedings relating to facts that may constitute tax offences punishable by custodial sentences conducted in absentia
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Commission v. Pollinis France: Court of Justice dismisses Commission’s appeal in dispute concerning access to EFSA documents under Article 4(3) of Regulation 1049/2001
Thursday 16 January
The Court of Justice handed down judgment in Commission v. Pollinis France (C-726/22 P), an appeal under Article 56 of the Statute of the Court of Justice, by which the Commission sought to have set aside the judgment of the General Court (‘GC’) in Pollinis France v. Commission (T-371/20 and T-554/20), where it annulled two Decisions by which the Commission refused to grant to Pollinis France, on the basis of Article 4(3)(1) of Regulation 1049/2001, access to certain documents concerning the Guidance Document of the European Food Safety Authorities (EFSA).
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VB II: Court of Justice clarifies Member States’ obligations to provide, under Article 8(4) of Directive 2016/343, legal remedies against decisions handed down in absentia
Thursday 16 January
The Court of Justice handed down judgment in VB II (C-400/23), a request for a preliminary ruling from the Sofia City Court (Bulgaria) concerning the interpretation of Articles 8(4) and 9 of Directive 2016/343 on the strengthening of certain aspects on the presumption of innocence.
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EU energy market: AG Campos Sánchez-Bordona delivers Opinion concerning interpretation of Regulation 2017/2195, intensity of review carried out by ACER Board of Appeal
Thursday 16 January
Advocate General Campos Sánchez-Bordona delivered his Opinion in Polskie sieci elektroenergetyczne S.A. v. ACER (C-281/23 P and 282/23 P), two appeals concerning ‘various electricity transmission operators (‘TSOs’) seeking to have set aside two judgments of the General Court, where it dismissed the actions for annulment brought, by the TSOs, against two decisions of the Board of Appeal (‘BoA’) of the European Union Agency for the Cooperation of Energy Regulators (‘ACER’).
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Ombudsman criticizes delay of European Commission’s handling of public document access request
Friday 17 January
The Ombudsman published her Decision on how the European Commission handled a request for public access to documents concerning a project in Senegal funded under the EU Trust Fund for Africa (case 1249/2023/ACB).
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FRA Report: enhancing fundamental rights in the European Green Deal
Friday 17 January
A new report by the EU Agency for Fundamental Rights (FRA) highlights a fragmented approach to integrating fundamental rights within the European Green Deal and stresses that to ensure a fair and inclusive transition, the EU must consistently apply human rights standards across climate policies and legislation.
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Vacancy for a position of référendaire at the General Court
Friday 17 January
A vacancy announcement was made for a référendaire to join the Fifth Chamber, chaired by Judge Svenningsen, which specialises in employment disputes involving EU personnel, alongside other cases under the General Court’s jurisdiction.
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Commission Decision prolonging and modifying aid schemes for biogas for motor fuel and tax exemption for non-food-based biogas and bio-propane in heat generation
Friday 17 January
Official publication was made of Commission Decision (EU) 2025/62 of 23 October 2024 on the prolongation and modification of the biogas aid scheme for motor fuel and the prolongation and modification of the tax exemption aid scheme for non-food-based biogas and bio-propane in heat generation, implemented by Sweden.
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EPSO open competition for administrators in the fields of direct and indirect taxation, published in OJ
Friday 17 January
The European Personnel Selection Office’s (EPSO) organisation of an open competition for administrators (AD 6) in the fields of direct and indirect taxation, including tax law, was published in the OJ.
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EDPB: Guidelines on pseudonymisation of personal data and statement on interaction of competition law and data protection
Friday 17 January
The European Data Protection Board (EDPB) adopted its Guidelines on pseudonymisation, as well as a statement on the interplay of competition law and data protection.
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