JUNE 20
2020
Nº22
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SPECIAL ISSUE
THE EVOLVING INTERACTIONS OF EU LAW AND INTERNATIONAL INVESTMENT LAW EDITED BY EDOARDO STOPPIONI
DANIEL MÜLLER
SOLANGE YOU DON’T GET IT WRONG: UNWINDING THE JUDICIAL DIALOGUE CONCERNING INVESTMENT CLAIMS HARM SCHEPEL
ONE CASE AT A TIME? THE UNBEARABLE JUDICIAL ECONOMY OF ACHMEA
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Adding a further layer of fragmentation? The implication of constitutional courts in the relationship between EU law and international investment law 1 Edoardo Stoppioni
man Constitution’ and that ‘as a consequence of an ultra vires act that formed the basis of the termination agreement – the consent of the German Government to sign the termination agreement constituted a violation of the German Constitution’.
I5 May 2020 was a topical date for the relationship between EU law and its adjacent legal orders. On the one hand, the German Federal Constitutional Court (BVerfG) rendered the well-known decision in the PSPP case that provoked fear and trembling among EU lawyers. On the other hand, on that same day all the EU Member States apart from Austria, Finland, Sweden and Ireland signed the ‘Agreement for the termination of bilateral investment treaties between the Member States of the European Union’, in order to conform to EU law obligations in the postAchmea era.
Notwithstanding the plausibility of such an outcome, the existence of such a hypothesis in the eld of investment arbitration is an interesting case study per se, to reect on the evolution of the relationship between EU law and international investment law and to question the various possible instrumentalisations of the PSPP decision.
The two events may seem completely unrelated at rst. Yet, in a recent post, Nikos Lavranos recalled that Achmea had resorted to the BVerfG to try to prevent the German Government from signing such an agreement, the effect of which calls into question the survival of its rights stemming from the much disputed investment arbitration award. The Constitutional Court had declared the claim premature on 23 March 2020, but the author speculates on the possible impact of the PSPP decision on the evolution of this stance. His hypothesis is that the BVerfG ‘could conclude that the CJEU violated the rights of Achmea stemming from the BIT and the Ger-
This perspective highlights an element that lies at the heart of the relations between EU law and international investment law: the difcult articulation of different layers of normativity. Indeed, we have to admit that the case law stemming from the Achmea judgment has created yet another example of this ‘fragmentation of the international legal order’ that Martti Koskenniemi theorised in his well-known ILC work. The possible implication of the BVerfG in the Achmea saga would add a third layer to the already hardto-reconcile relations between legal orders.
1. 'PhD in International Law (Sorbonne) and Senior Research Fellow (Max Planck Institute for Procedural Law, Luxembourg)
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The BVerfG had already dealt with international investment law. At rst, in 2007, in the in Argentine Bondholder Case, the Court while recognising that BITs could have direct effect in the national legal order - rejected the possibility for a State to invoke the state of necessity under general international law towards private individual to suspend its private law obligation to pay. This rst decision came with a powerful dissenting opinion by judge Lübbe-Wolff maintaining that such a general principle could have been invoked as far as the State was acting to protect the bien commun. In 2016 the Court was asked twice to decide on international investment law issues. In the framework of the nuclear phase-out case, the BVerfG had to deal with a fundamental standard of protection under international investment law: legitimate expectations of investors concerning the stability of the legal regime. In another 2016 decision, the BVerfG was called to assess some constitutional challenges to CETA that led the Court inter alia to clarify the repartition of competences between the EU and its Member States in relation to the agreement. The Constitutional court seemed to stress the ontological mixity of this kind of agreement that the EU could not conclude on its own, a political message that was followed in Opinion 2/15. Generally speaking, it was remarked that the decision was construed in a way so as to give the last word to Karlsruhe. What if this dialogue had to transform?
The Court of Justice had always construed its approach towards international commercial arbitration in terms of ‘tolerance by exclusion’, believing since its Nordsee and Rich judgments that the arbitration legal sphere and the EU legal space were two worlds apart; the former could be tolerated as long as it did not impinge on EU public order (Eco Swiss China and Mostaza Claro). But with Achmea, the Court willingly construed the relationship between EU law and international investment arbitration in terms of regime conict. The reason thereof lies at the heart of the axiological differences animating the two branches of law: while the EU judicial system is based on trust towards the national judge, investment arbitration takes the opposite stance and is therefore incompatible with autonomy and Articles 267 and 344 TFEU. Investment tribunals have completely ignored the voice of the Court of Justice when asked to decline their jurisdiction based on the Achmea decision. Different arguments have been used to justify this difculty to take into account the decision of the Court of Justice and since then the two legal orders evolved in splendid isolation. Within the EU legal order, intra-EU investment arbitration is contrary to the basic principles of EU procedural law. In the international legal order an intraEU BIT is a valid and enforceable treaty functioning, functioning in parallel with EU treaties and not being encroached upon by the Achmea decision.
Stephan Schill, reecting on the unavoidable encounters between international economic law and constitutional law, had put forward the hypothesis that the relations between the CJEU and national courts could be
In this context, could the BVerfG add a third layer of potential fragmentation?
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From the point of view of discourse analysis, Achmea takes the stance of defending the unity of the internal market with a procedural approach, the PSPP decision created fragmentation with a peculiar Solange exercise. It is therefore interesting to see how the arbitration community might be willing to use the latter discourse of disharmony to put an end to an uncomfortable imposition of unity. The object of this edition will be the chasm between these two discourses, the hypothetical instrumentalisation of this possible further layer of fragmentation, to create new regime conicts and defend a particular agenda, trying to reinstate an intra-EU investment arbitration.
a source of inspiration to solve potential conicts: ‘despite claiming supremacy, courts at both levels therefore exercise considerable deference and engage in a “judicial dialogue” to mitigate conict’. In abstract terms, it is undeniable that the PSPP decision is a discourse of rupture, breaching the harmony between systems, be it in terms of Europarechtsfreundlichkeit in constitutional terms or from the prisms of contrapuntal law in the Simmenthal perspective. Beyond the concrete impact on the relationship between constitutional law and international investment law, it is interesting to remark how this discourse of rupture can be used to build an argument defending an intra-EU international investment law.
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Solange you don’t get it wrong: Unwinding the judicial dialogue concerning investment claims Daniel Müller
The Weiss judgment of the German Federal Constitutional Court (BVerfG) is likely to gure prominently among the many legal authorities annexed to legal briefs submitted to investment tribunals in intra-EU disputes. This is not because it delivers a blow to the PSPP, at least in Germany. The judgment provides serious, authoritative and – on the face of it – convincing support for the proposition that not all decisions of the Court of Justice of the EU (CJEU) can deploy the legal force recognised for them under the EU treaties. Which decisions does this concern? Those that are wrong because these decisions are not within the mandate of the Court of Justice to ‘ensure that in the interpretation and application of the Treaties the law is observed’. Claimants arguing against the implications of Achmea (C-284/16) before investment tribunals, and indeed against the correctness of the CJEU’s preliminary ruling as such – for example in the recent case between Addiko Bank and Croatia – are certainly tempted to rely on Karlsruhe, in addition to many other authorities that are out there.
and investment arbitration. Since Achmea, most tribunals simply avoid the obstacle by proclaiming the irrelevance of EU law in toto. Others have engaged with the Achmea decision distinguishing it from the cases at hand without questioning whether the CJEU interpreted EU law principles correctly, namely observing the law. In BayWa v. Spain, the distinguished tribunal gave credit to the CJEU’s decision and conrmed its legal relevance: ‘For just as the European treaties are part of international law, so the CJEU, which exercises jurisdiction as between EU Member States, is an international court whose decisions are binding on those states inter se. International law allows the states parties to a regime treaty to establish their own international courts with jurisdiction over and authority to bind the Member States on issues of international law affecting them. It also allows those States to establish the priority of the regime treaty over other sources of international law, at least so long as peremptory norms are not implicated.’
The same tribunal considered obiter that if Achmea applied to the Energy Charter Treaty (ECT) – quod non – ‘it would authoritatively establish, as between Germany and Spain, that the TFEU modies Article 16 of the ECT on an inter se basis’.
So far, arbitral tribunals have been reluctant to take the path of rejecting the relevance of Achmea on the basis of correctness. Of course, before Achmea, arbitral tribunals refused to admit any incompatibility between EU law
1. Avocat au barreau de Paris
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ment proceedings against Germany before the CJEU – and they would be successful.
In a nutshell, arbitral tribunals did not need any help from municipal courts, or even constitutional courts, to disregard the interpretation of EU law provided by the CJEU. The question remains whether a decision of the BVerfG nding the Achmea decision ultra vires could provide more certainty and how.
This is certainly not the place to discuss whether Achmea is right or wrong or whether a review by the BVerfG or any other court would come to the same conclusion. What is clear is that intra-EU bilateral investment agreements are an anomaly within the European legal order. As explained elsewhere, the bulk The answer is clearly that it could not. If the of these treaties is the result of the accession BVerfG ‘validated’ the CJEU’s decision – policy conducted by the European Union itwhich is clearly not its role –, arbitral tribuself. All of these treanals certainly would not ties were concluded at be more inclined to draw a time when at least the necessary consequenThe question remains whether one of its parties was ces from the Achmea decinot a EU Member Stasion in terms of lack of a decision of the BVerfG finding te, encouraged by the consent to arbitrate altthe Achmea decision ultra vires Europe Agreements hough there are means, inconcluded with accluding legal rules, that could provide more certainty cession candidates could achieve a respectaand how and seeking a legal frable result as Professor mework for the ecoKohen has shown in his nomic and industrial dissenting opinion in Adareconstruction of the Central and Eastern Eumakopoulos v. Cyprus. On the other hand, if ropean countries through investments. Hothe BVerfG considered that the CJEU had acwever, once this transition was completed ted outside its mandate and declared the and the relevant countries admitted to MemAchmea decision without legal effect in Gerbership in the European Union, the BITs remany, the result would be nothing more than mained regardless of their initial objective greater uncertainty. Maybe Germany would and purpose. With the accession of Croatia become a seat of choice for intra-EU investin 2013, the number of intra-EU BITs reament arbitrations that are not conducted unched its peak with 193 intra-EU BITs in forder the ICSID Convention. However, the ce. Whether the issue of intra-EU BITs was BVerfG cannot erase the interpretation of an oversight during the extensive accession Articles 267 and 344 TFEU. The European negotiations or not does not change the fact Commission and, quite likely, other EU that a solution to the unequal system of inMember States (that would be unsuccessful vestment protection they have established in annulling arbitral awards in German within the European Union, in particular courts because the Achmea judgment could with respect to access to arbitral tribunals, not be relied upon) would bring infringe-
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the international agreement. In the recent decision in Addiko Bank v. Croatia, the arbitral tribunal developed a similar reasoning (even if its application to the Austria-Croatia BIT might be questionable). The CJEU itself has validated investor-State arbitration provisions that are limited to disputes concerning the international agreement in its Opinion 1/17 on CETA.
needs to be implemented. This should of course be done through and in accordance with law. The Achmea judgment is but one element in this process. But it did not address all issues created by intra-EU BITs. Contrary to the broad position of the Commission and Member States, the Court did not nd that any investor-State arbitration provision in intra-EU BITs is precluded by Articles 267 and 344 TFEU. The judgment only addresses those provisions that are ‘such as’ Article 8 of Netherlands-Slovakia BIT. Some investor-State arbitration provisions are more limited, such as Article 9 of the Netherlands-Croatia BIT applying only to disputes concerning obligations under that treaty, conning the mission and power of the arbitral tribunal to the interpretation and application of the provisions of
The ‘legal solution’ to the intra-EU BIT issue has been completed by the Termination Agreement of 5 May 2020 purporting to terminate 132 intra-EU BITs and to conrm the termination of the sunset clauses contained in these and other already terminated BITs. The Agreement does not constitute a comprehensive and denitive solution because the United Kingdom, Austria, Finland, and Sweden did not sign it, leaving 42 intra-EU BITs in le-
The ‘legal solution’ to the intra-EU BIT issue has been completed by the Termination Agreement
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the President of the BVerfG pointed out during the reading of the Weiss decision:
gal limbo. Nevertheless, once the Agreement has entered into force in respect of the relevant Member States, their BITs will be terminated, including the sunset clauses, in accordance with general rules of international law as codied by Article 54(b) of the Vienna Convention on the Law of Treaties, bringing an end to investment arbitration under such agreements. Whether Achmea was right or wrong, does not matter. Rather than putting this solution into question, Member States and their courts should now focus on
‘The idea of the European legal community does not lose its signicance in the crisis. On the contrary, in order to overcome the crisis and its consequences in a sustainable fashion, we need the law as a solid common pillar.’
The retroactive conrmation of the invalidity of arbitration clauses in BITs in Article 4(1) of the Termination Agreement will crea-
The retroactive confirmation of the invalidity of arbitration clauses in BITs in Article 4(1) of the Termination Agreement will create more problems
An equally difficult issue will arise in respect of Article 10 of the Termination Treaty
the future legal regime promoting and protecting investments within the European Union, taking up the role that is devoted to them. Because even if arbitration is not an option anymore, effective legal remedies are still necessary. Member States and investors should be able to trust the judicial systems in other Member States under the supervision of the CJEU – and certainly also the European Court of Human Rights. If they do not, there are principles and means to build or, if necessary, restore trust. The past has shown – in particular in light of the Solange dialogue between the BVerfG and the CJEU in the eld of fundamental rights –, that such a dialogue can lead to satisfactory outcomes. As
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te more problems. Here, Achmea, its scope, and its correctness remain relevant. Even if the Member States retain some powers to interpret the EU treaties and their BITs, simply conrming an incompatibility that has not been fully established – or at least not in respect of arbitration provisions that are not comparable to Article 8 of the NetherlandsSlovakia BIT – might not be dispositive of the issue. This issue will continue to be debated in pending arbitration proceedings. An equally difcult issue will arise in respect of Article 10 of the Termination Treaty. The idea of offering effective remedies before municipal courts for disputes that are cu-
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pean Union is far from over. There will necessarily be renement, conrmation and challenges concerning, on the one hand, the scope and content of the transitional regime covering cases that were not terminated before the Achmea judgment, and on the other hand, the future investment rules in the intraEU context. It is now up to municipal courts to play an active role in ensuring effective and efcient protection, if necessary, against the transitional regime envisaged under the Termination Agreement, as well as in favour of future promotion and protection of investments in the internal market. Let’s start discussing this, rather than disputing past solutions…
rrently pending makes sense. However, Article 10(3) provides that ‘the provisions of Bilateral Investment Treaties terminated pursuant to this Agreement shall not be considered as part of the applicable law in proceedings brought before a national court pursuant to this Agreement’. As such, this provision retroactively eliminates provisions of BITs that were in force when the dispute arose and potentially deprives investors of their substantive rights. This issue will give rise to claims before municipal courts, including constitutional courts. The judicial dialogue on the present and future protection of investments within the Euro-
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One case at a time? The unbearable judicial economy of Achmea Harm Schepel
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standards of treatment of legacy BITs were In One case at a time, Cass Sunstein extolled incompatible with the Treaties. the virtues of ‘judicial minimalism’. Courts should not, he argued, decide more than they On the issue of EU investment agreements, have to to resolve the matter at hand. In this the Court has been instrumental in making way, they lower the risk of unintended consure that absolutely nobody now remembers sequences that grand pronouncements of that the Commission, not so principle might have, and long ago, claimed exclusive they leave appropriate spacompetence for the EU to conce for the political system to Could we read Achmea clude a wholly unreconstrucaddress open issues. On a charitable reading of its enas an exercise in judicial ted standard investment chapter in TTIP with the United gagement with internatiominimalism? States. In Opinion 2/15, the nal investment law, the Court stuck religiously to its Court of Justice could be carefully restricted brief of dethought to have taken the adciding on competences, not vice. compatibility. When it had to nally decide on the latter in the recent CETA Opinion, the On the issue of BITs between Member StaCourt managed to craft its reasoning in such tes and third countries, the Court played a way as to suggest that the reformist scrubalong with the Commission in the wild bing and chastening of the text were both a theory that the major legal problem with thenecessary and sufcient condition for comse lay in their provisions on free transfer of patibility. funds which could, potentially, detract from the effectiveness of emergency measures taCould we read Achmea as an exercise in judiken under Articles 66 and 75 TFEU. This cial minimalism? What the Court was obliwas true pragmatic genius: just enough to ged to decide was the compatibility of the trigger Article 351(2) TFEU and get the Dutch-Slovak BIT with EU law. What the reGrandfathering regulation through, while ferring court explicitly invited the Court to avoiding the unnecessary confrontations do was to decide the matter in such a way as and clashes and procedural mayhem that to provide clarity on the legality under EU would have followed a nding that the core
1. Professor of Economic Law, Kent Law School and Brussels School of International Studies, University of Kent.
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hierarchy to apply or interpret EU Law, clearly a problem for the Court in light of its doctrine on the autonomy of the EU legal system. But is it the only problem? It is hard to tell. In paragraph 58, the Court explains the difference between EU agreements and intra-EU BITs.
law of all intra-EU BITs. What the Court could easily have done is to decide the matter in such a way as to provide clarity on the legality under EU law of the Energy Charter Treaty. It is easy to see why the Court may have felt reluctant to go beyond the rst question: procedural mayhem in courts and tribunals all over the world would inevitably follow from a blanket nding of incompatibility. The better outcome, surely, may have been thought to be to encourage political solutions - say, a plurilateral Termination Agreement, and a comprehensive renegotiation of the ECT.
‘In the present case, however, apart from the fact that the disputes falling within the jurisdiction of the arbitral tribunal referred to in Article 8 of the BIT may relate to the interpretation both of that agreement and of EU law, the possibility of submitting those disputes to a body which is not part of the judicial system of the EU is provided for by an agreement which was concluded not by the EU but by Member States. Article 8 of the BIT is such as to call into question not only the principle of mutual trust between the Member States but also the preservation of the particular nature of the law established by the Treaties, ensured by the preliminary ruling procedure provided for in Article 267 TFEU, and is not therefore compatible with the principle of sincere cooperation.’
Under intra-EU BITs, a Member State is obliged to afford nationals of one Member State treatment it does not afford to nationals of other Member States. It seems self-evident that all of them offend Article 18 TFEU and, for that reason alone, are to be considered incompatible with the Treaties. The argument based on discrimination offered the Court an easy path to a straightforward and clear nding of general application. But the Court, tellingly, found ‘no need’ to go into the issue of discrimination in light of its ndings on mutual trust and autonomy. This exercise in judicial economy would have been perfectly legitimate had the preceding analysis yielded a clear nding. But it did not.
To be sure, the Court seems to suggest (by using ‘apart from the fact that…’) that the principles of mutual trust and autonomy preclude the settlement of investment disputes between Member States by arbitral tribunals located outside the EU judicial hierarchy generally. When it comes down to it, however, it turns out that the extent to which the Netherlands and Slovakia had offended these principles is limited to the applicable law clause of Article 8 of the BIT.
The Court pounced on a feature of the BIT at issue that sets it apart from other intra-EU BITs, an applicable law clause that instructed the arbitral Tribunal to ‘decide on the basis of the law’, and to ‘take into account’ of, among other things, ‘the law in force of the Contracting Party involved’. This allows a Tribunal located outside of the EU judicial
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issue contains a more cleverly drafted applicable law clause. And yes, who knows, the Bundesverfassungsgericht may yet hold the judgment to be ultra vires. If it does, however, it will not be because the Court decided too much or went too far. It will be because the Court decided too little. If the only problem with the Dutch-Slovak BIT is the possibility that a Tribunal might undermine the effectiveness and autonomy of EU law by interpreting and applying EU law, it may well seem reasonable to suggest that Achmea’s rights should not be affected where the award it is trying to collect is decided entirely on the basis of the BIT and international law, without any need to have recourse to EU law.
The guiding idea behind judicial minimalism is to avoid problems arising from deciding too much. Maybe that is what the Court was trying to achieve in Achmea; in any case, it seems to have badly miscalculated the problems arising from deciding too little. Yes, the Court managed to ‘nudge’ a majority of Member States into accepting that all intra-EU BITs and the ECT are now unlawful under EU law - but not all. Tribunals deciding cases under the ECT are wholly unpersuaded by the Commission’s repeated interventions on the effects of Achmea, not just as a matter of international law but, thanks to the Court’s ambiguity, as a matter of EU law. Courts and tribunals dealing with intra-EU BITs can reasonably distinguish their cases from the Achmea ruling where the Treaty at
The Court managed to ‘nudge’ a majority of Member States into accepting that all intra-EU BITs and the ECT are now unlawful under EU law - but not all
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News Highlights Week 15-19 June 2020 AG Bobek: how to interpret the scope of application of Directive 98/59 on collective redundancies Monday 15 June
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According to Advocate General Bobek’s Opinion in Marclean Technologies (C-300/19), a preliminary ruling case concerning the interpretation of Council Directive 98/59 on collective redundancies, Article 1(1)(a) should be interpreted as referring to any period of 30 or 90 consecutive days which includes the dismissal of the worker at issue.
EU and African, Caribbean and Pacific States resume talks for new Partnership Agreement Monday 15 June
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The EU and the Organisation of African, Caribbean and Pacic States resumed talks at the highest political level with the goal to advance towards the nishing line on the new ‘Post Cotonou’ agreement.
Internal market ministers release COVID-19 Recovery Plan statement Monday 15 June
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Internal Market and Industry Ministers released a joint statement expressing their support for, and the importance of, the ‘Recovery Plan for Europe’ (presented by the European Commission on 27 May) to repair the economic and other damage caused in the EU by the COVID-19 pandemic.
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Court of Justice clarifies how to apply EU compensation rules for flights delayed due to unruly behaviour of passengers Monday 15 June
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The Court of Justice published its preliminary ruling in LE v Transportes Aéreos Portugueses SA (C-74/19), on the interpretation of Article 5(3) of Regulation 261/2004. The case concerns a delay in a ight caused by the need to remove an unruly passenger who had bitten another passenger, and assaulted other passengers and members of the cabin crew.
EU Aviation Safety Agency reviewing COVID-19 safety issues Monday 15 June
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EASA published the rst results of its review on safety issues arising from the COVID-19 pandemic. The report provides the results of the rst step in the Safety Risk Management process by identifying the safety issues. The Agency next aims to identify further mitigating measures and to support their implementation across the industry, through the Return to Normal Operations project.
Commission launches formal antitrust investigations in respect of App Store and Apple Pay Tuesday 16 June
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The European Commission announced that it has opened formal antitrust investigations concerning Apple specically for its App Store and Apple Pay for possible practices breaching EU competition rules on anticompetitive agreements between companies (Article 101 TFEU) and/or on the abuse of a dominant position (Article 102 TFEU).
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Proceedings against Council of EU challenging Decision concluding Withdrawal Agreement
Court of Justice to clarify requirements for judiciaries examining corruption cases
Tuesday 16 June
Tuesday 16 June
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Ofcial publication was made of a case led on 30 March 2020 against the Council of the European Union seeking the annulment or partial annulment of the Council Decision on the conclusion of the Withdrawal Agreement and its annexes.
Ofcial publication was made of three requests for a preliminary ruling (C-840/19, C-859/19, and C-929/19) concerning the requirements arising from EU law in respect of the organisational and procedural arrangements within national judiciaries and their relations with national constitutional courts when it comes to the examination of corruption cases.
ECtHR: right to private life may require reopening of time-barred paternity proceedings
Council approves 2019 annual report on human rights and democracy in the world
Tuesday 16 June
Tuesday 16 June
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The European Court of Human Rights found a breach of Article 8 ECHR in Boljević v. Serbia, a case concerning the refusal by domestic courts to reopen paternity proceedings dating to the 1970s because they were timebarred, thereby preventing the applicant from proving his origins via modern DNA testing methods.
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The Council of the EU approved the 2019 EU annual report on human rights and democracy in the world. The report presents the EU’s activities protecting, supporting and promoting human rights and fundamental freedoms worldwide, through the European External Action Service, the EU Commission and EU delegations and ofces around the world.
Commission’s guidance on food safety management systems for food retail activities
EFTA Surveillance Authority approves Icelandic travel vouchers scheme
Tuesday 16 June
Tuesday 16 June
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Ofcial publication was made of a notice by the European Commission providing guidance on food safety management systems for food retail activities, including food donations. The notice aims to facilitate and harmonise the implementation of the EU requirements for a Food Safety Management System, including guidance on implementation of Regulation 852/2004.
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The EFTA Surveillance Authority (ESA) approved a scheme notied by Iceland to encourage Icelanders to support national tourism in the wake of the COVID-19 outbreak. The measure, with an overall budget of 1.5 billion ISK, aims to provide temporary support to companies in the tourism sector.
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Mandatory Transparency Register nego- Court of Justice to rule on the compatibility with EU law of language requiretiations to resume ments for third country nationals to acREAD MORE ON EU LAW LIVE Wednesday 17 June cess housing benefits European Parliament negotiators met with the Commission Vice-President and Croatian Presidency representatives to exchange views on the Transparency Register, aimed at boosting transparency in the EU decisionmaking process by listing organisations that try to inuence the law-making and policy implementation process of EU institutions.
Wednesday 17 June
Repayment of customs duties and negligence: pending before the Court of Justice Wednesday 17 June
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Ofcial publication was made of a request for a preliminary ruling (Rottendorf Pharma, C-92/20) on the interpretation of Article 239(1) of the Customs Code Regulation 2913/92. May customs duties be repaid where the non-Community goods imported by the person concerned were re-exported from the Community customs area and there was no clear negligence?
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A request for a preliminary ruling (C-94/20) was ofcially published, concerning the compatibility with EU law of Austrian rules that allow EU citizens, EEA nationals and family members to receive a social benet in the form of housing assistance without proof of language prociency, but however requiring third country nationals with long-term resident status to provide proof of a basic command of German.
COVID-19: EU Vaccines Strategy announced by Commission Wednesday 17 June
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The European Commission announced an EU Vaccines Strategy, proposing a joint EU approach, and noting that this is mandated by EU health ministers, with the objectives of swift access, equitable access, and safe vaccines of high quality.
Commission publishes White Paper and opens consultation on preventing Grand Chamber of the Court of Justice: foreign subsidies distorting the EU mar- Hungarian law on the transparency of associations breaches freedom of capiket tal and EU fundamental rights
Wednesday 17 June
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The European Commission is exploring legislative measures to prevent foreign subsidies from distorting the EU market. It has published a White Paper on how to address these issues, including the suggestion of a series of compulsory notication mechanisms, and also opened up a public consultation to feed into any future legislative proposal.
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Thursday 18 June
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It was decided that by imposing obligations of registration, declaration and publication on certain categories of civil society organisations directly or indirectly receiving support from abroad exceeding a certain threshold and providing for the possibility of applying penalties to organisations that do not comply with those obligations, Hungary has breached Article 63 TFEU (free movement of capital) and the rights to respect for private and family life, protection of personal data, and the freedom of association (Articles 7, 8 and 12 of the Charter).
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Council adopts conclusions on security and defence Thursday 18 June
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The Council of the EU adopted conclusions on security and defence in the context of the EU Global Strategy, taking into account COVID-19, inviting the High Representative to provide the full range of threats and challenges the EU faces, and calling for greater enhancement of security of information and communication systems in the CSDP and defence contexts.
Thursday 18 June
Two pending General Court actions against the Community Plant Variety Office Friday 19 June
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Ofcial publication was made of Griba v CPVO (Stark Gugger) (T-181/20) and Griba v CPVO (Gala Perathoner) (T-182/20), two Community Plant variety cases currently pending before the General Court.
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Advocate General Saugmandsgaard Øe delivered his Opinion in Bundesrepublik Deutschland (Détermination des taux des péages pour l’utilisation d’autoroutes) (C-321/19), advising that the Court of Justice rule that Article 7(9) of Directive 1999/62, setting out the amount of tolls for the use of certain infrastructures by heavy good vehicles, has direct effect and prohibits inclusion of the costs of trafc police.
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In his Opinion for Szpital Kliniczny (C–16/19), the AG advises the Court that in line with the Equal Treatment at Work Directive and principle of equal treatment’s objectives, that indirect discrimination can occur and be covered by EU law where two groups of people with the same protected characteristic are the comparator.
ECtHR: Greece must compensate widow deprived of part of her deceased husband’s inheritance by virtue of application of Sharia law Friday 19 June
AG Saugmandsgaard Øe: Opinion on toll rates for heavy goods vehicles Friday 19 June
AG Pitruzzella: indirect discrimination at work can occur between groups of people who have the same protected characteristic
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The Grand Chamber of the European Court of Human Rights rendered its just satisfaction judgment in Molla Sali v. Greece (application no. 20452/14), in a discrimination case brought by a Greek national living in Greece and widow to a Greek national from the Muslim minority, relating to the Greek courts applying sharia law to an inheritance dispute concerning her deceased husband’s properties.
Council renews Russian sanctions by one year over illegal annexation of Crimea Friday 19 June
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The Council of the EU decided to renew sanctions imposed in response to the Russian Federation’s illegal annexation of Crimea and Sevastopol until 23 June 2021. Neither the EU nor any of its Member States recognise Moscow’s de facto control over these territories, which they claim to be a violation of international law.
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Nº22 · JUNE 20, 2020
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How to determine jurisdiction in disputes among co-owners of residential properties: AG Szpunar’s Opinion Friday 19 June
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Advocate General Szpunar delivered his Opinion in Ellmes Property Services (C-433/19), a case where the Court of Justice is called on to rule on the jurisdiction to hear an application under Austrian law whereby the owner of a residential property essentially requires another owner to cease using his residential property apartment for tourism purposes on the ground that the statutes of the co-owners’ association do not authorise such use.
Analyses & Op-Eds The Eurogroup and Effective Judicial Protection in the EU: Chrysostomides By Menelaos Markakis and Anastasia Karatzia
Brompton bicycles: is copyright protection available for shapes? By Sabine Jacques
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Op-Ed on the recent Opinion of Advocate General Pitruzzella in Chrysostomides (Joined Cases C-597/18 P, C-598/18 P, C-603/18 P and C-604/18 P), analysing the legal intricacies of these cases, important because the Court of Justice has an opportunity for the rst time to clarify whether the Eurogroup is an institution under Article 340(2) TFEU, whose actions may trigger the non-contractual liability of the EU.
Analysis of the Court of Justice’s ruling in Brompton Bicycle (C-833/18) on whether functional shapes are eligible for copyright protection, which deepens the understanding of the possibility of overlapping intellectual property rights over the same item. It also offers the Court the opportunity to clarify the protection granted to shapes which are dictated by a functional element.
ECOFIN draft report to the European Council on VAT – will the definitive VAT system become true?
The Court of Justice rules that EU law prohibits the distribution of free samples of prescription-based medications to pharmacists
By Jordi Sol
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Analysis by Jordi Sol explaining the meaning and implications of ECOFIN’s draft report of 5 June 2020 on recent tax issues, which provides an overview of the progress achieved under the Croatian presidency as well as the state of play of the most important dossiers under negotiation in the area of taxation.
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By Johanna Jacobsson
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Analysis on the recent judgment of the Court of Justice Ratiopharm (C-786/18), explaining why it reinforces the importance of interpreting the EU’s secondary legislation in light of its context and purpose: where the different language versions of the Directive were not entirely consistent, the Directive’s principal goal to safeguard public health led the Court to conclude that the possibility to provide free samples of prescriptionbased medications exists only with regard to those who are entitled to prescribe them.
Nº22 · JUNE 20, 2020
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Where were you while we were getting high? A large quantity of drugs and the principle of legality in EU law
The status and compensation of claims in the context of mutual assistance between Member States
By Leandro Mancano
By Darya Budova
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Analysis on the recent judgment of the Court of Justice in Prokuratura Rejonowa w Słupsku (C-634/18), on a question concerning the national implementation of EU substantive criminal law and the principle of legality. The preliminary ruling is particularly relevant, as the main focus of the CJEU’s case law so far has been largely on judicial cooperation and procedural rights.
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Analysis of the case Pantochim, C-19/19, in which it was unclear how to treat an insolvent company for tax purposes in a cross-border context, when that company had not declared debtors’s claims in bankruptcy proceedings, in particular looking at the scope of the provisions establishing how a mutual assistance claim must be treated under EU rules.
Brexit, CSDP and the Arbitration Clause By Merijn Chamon
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Analysis of the jurisdictional, procedural and substantive issues in JF v EUCAP Somalia (T-194/20), concerning the termination of a British national’s CSDP mission contract on the ground of the UK’s imminent withdrawal from the EU. The British national argues that, at least during the transition period, he should be treated in the same way as all other nationals of EU Member States.
Library - Book Review PIER LUIGI PARCU, GIORGIO MONTI, MARCO BOTTA (EDS.)
EU State Aid Law. Emerging Trends at the National and EU Level
By Anna Nowak-Salles
Elgar, 2020, 264 pp. READ ON EU LAW LIVE
This review notes that the focus on the evolution of State aid law and contributions in this book help the reader to better understand and more consciously observe EU State aid policy, giving even those who deal with State aid as part of their daily routine the feeling that EU State Aid Law provides a useful and enriching overview of changes in State aid policy. The book is also noted as avoiding overly abstract digressions, making it useful to academics, professionals and EU law-makers too.
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