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tribution will focus on the second question: can you (de facto or de iure) re-establish an EU without Poland and Hungary? The background to this question hardly needs explaining. Over recent years, these two countries have demonstrated that they have no place in a civilised polity like the EU. While there are mechanisms in place to deal with retrograding Member States, they are ineffective and any fundamental reform is hampered by the requirement of unanimity.
In a debate in the Dutch parliament on 9 September 2020, Dutch PM Mark Rutte was challenged on the unclear rule of law guarantees that had been agreed on by the European Council in relation to the upcoming multiannual nancial framework. Rutte rst responded by noting that he hoped the European Parliament would make further demands which the Netherlands would then try to build upon within the Council. Secondly, Rutte quipped that the maximum of what could have been achieved in the European Council had indeed been achieved and that asking for more “would have required us to enter new territories. We would have to ask ourselves: can you establish a budget through an intergovernmental treaty, or can you establish an EU without Poland and Hungary? These would be nuclear options”.
The legal feasibility of de iure or de facto re-establishing the EU has both an EU and a public international law (PIL) dimension. For both, the issue to be addressed is two-fold: what is the legal framework governing the dissolution of the current EU (following which a new EU can be established without Poland and Hungary) and what is the legal framework for establishing a new international organisation (IO) (without Poland and Hungary) that would succeed the old EU (regardless of whether the old EU has been disbanded).
In an Op-Ed on EUObserver, Theuns discussed Rutte’s suggestion from a political perspective but evidently these questions are rst and foremost legal in nature. The present con-
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a result this would at least involve unanimity in the European Council. In any case every EU Member State would have to agree to the liquidation of the EU.
Dissolution and succession under Public International Law As a preliminary point, it should be noted that the general rules on PIL refer to the EU’s internal rules on dissolution or succession. While these are not explicitly laid down in the Treaties, as we will see, they arguably do exist. The general rules under PIL are included here to sketch the broader context but would be displaced by the EU-specic rules if a dissolution or succession would effectively materialise.
Turning to the question of succession, it should be noted that this issue has not been explored much in the PIL scholarship (2). It seems to have been briey discussed but then dropped (p. 270) by the International Law Commission (ILC) in the margins of its work on the succession of states. Later the ILC even noted that ‘strictly speaking, there can never be a “succession" of organisations”’ (p. 93), because differently from the succession of states no territory is involved. While not going as far, the lack of any territorial dimension to the succession issue is also highlighted by Shinkaretskaya to argue against a simple transposition of the rules on state succession (3).
Very few instruments establishing IOs contain provisions on the dissolution of the IO and this evidently includes the EU, which is furthermore established for an indenite period of time (Articles 53 TEU and 356 TFEU). What then are the general rules on dissolution in case the establishing instrument is silent? As Klabbers notes two broad views can be discerned, a rst follows the traditional view that IOs are the creatures of the states establishing them and that dissolution is only possible pursuant to an agreement between the members. A second view gives more weight to the idea that IOs are actors in their own right and suggests that they could end their own existence. Still, according to Klabbers this would have to be done pursuant to the procedure reserved to the most important decisions taken by the IO. For the EU this would mean looking at the procedures for the simplied treaty revision or the passerelle clauses under Article 48 TEU. As
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Also on the issue of succession in the sense of replacement, two broad views can be distinguished. Under a rst, only the original parties can replace an IO with a new one, and of course this would in principle require the consent of all Member States. Under a se-
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cond view, the IO itself can also regulate the continuity of its functions by entrusting some of its tasks to a new IO (see Wessel p. 350). Could the rule of law-compliant EU Member States then de facto replace the old EU by establishing an EU 2.0 that pursues the same functions as the EU, while not formally disbanding or withdrawing from the old EU? While Poland and Hungary could not stop the other EU Member States from doing so, the rule of law-compliant Member States would be required to respect the rights and obligations of Poland and Hungary under the EU Treaties. In case of a dispute, Poland and Hungary could bring this before the CJEU and possibly (notwithstanding Article
pressly assumed by the UN. The ICJ found that the task entrusted to South Africa survived the LoN and that supervision was therefore required and implicit under the UN Charter. Of course, South Africa was a member of both the LoN and the UN which would not be the case for Poland and Hungary. Dissociating a function from its institutional framework, one would have to argue that the old EU has become dysfunctional in terms of fullling the EU’s original tasks, and its functions could therefore legitimately be taken up by an EU 2.0 without Poland and Hungary. It is clear however that such a reasoning would require considerable legal gymnastics.
344 TFEU) the International Court of Justice (ICJ). In the 1950s the latter ruled on an interesting case whereby South Africa questioned whether it could be supervised by the UN General Assembly as an administrator of the territory of South West Africa. This was given that the original supervising authority, the League of Nations (LoN), had been dissolved. These powers of supervision were not expressly transferred by the LoN nor ex-
Dissolution and succession under EU Law
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Whereas in principle anything is possible under PIL as long as all Member States consent, the situation is more complex under EU law, since the latter constitutes an autonomous and constitutional system. Under EU law then, dissolution (and de iure succession) would arguably require a decision by the pouvoir constituante, which has to be exercised
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cil, they can effectively dismantle the old EU in this way. Similarly to what happened when the European Coal and Steel Community was dissolved, they could then mandate the would-be Commission 2.0 to manage the assets on their behalf before they are transferred to the EU 2.0
pursuant to Article 48 TEU. A body such as the CJEU could not otherwise sanction any dissolution or succession without denying the foundations of its established jurisprudence which is premised on the EU being a constitutional system. As a result, one could not simply take the ‘easy option’ of a tabula rasa by letting the original EU wilt away and starting anew with an EU 2.0 as if nothing happened. Doing so would amount to breaching the rule of law in order to uphold the rule of law.
Exploiting enhanced cooperation One further option builds on the suggestions made by Piris in his book on the Future of Europe in which he discussed the possibility for an avant-garde EU to deepen EU integration. A second option would thus be to exploit to the fullest the potential of enhanced cooperation under Articles 20 TEU and 326 TFEU. According to Piris the downside of this would be that the relevant Treaty provisions would still have to be respected and that all members of the Parliament and Commission (not only those from the avant-garde Member States) would participate in decision-making. However, that would not be a drawback in this case, since we are not talking about a small avant-garde but a majority of rule of law-complying Member States. This option is different from the preceding ones since de iure the EU would continue to exist. However, the current EU would become the shell (including Poland and Hungary) in which the core EU progresses further without Poland and Hungary.
The only scope to bypass the consent of Poland and Hungary would have to be found in a de facto succession, whereby the old EU continues to exist, with or without the other Member States as parties. Collective exit A rst possibility would seem to be the reverse of the suggestion made by Hillion earlier this year on Verfassungsblog. Hillion argued that Poland and Hungary have effectively triggered the procedure of Article 50 TEU through their illegitimate behaviour. Reversing this solution would see the rule of law-compliant Member States collectively leave the EU by each individually triggering Article 50 TEU. While the European Council would not be able to provide guidelines under Article 50 TEU, compliance with Article 218 TFEU would be entirely possible. The Commission would then negotiate identical withdrawal agreements in parallel. The EU’s entire assets could thus be returned to the withdrawing Member States, leaving the old EU (and Poland and Hungary) with zero assets. As long as the rule of law-compliant Member States muster a QMV in the Coun-
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Under this solution, the fact that the EU Treaties are traités cadres would be exploited: some benets of EU membership follow directly from the Treaties (such as free movement of goods, services and persons) and cannot be withheld from Member States. Other benets are created through secondary legis-
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that judgment it allowed the Eurozone Memlation (such as agricultural subsidies, regiober States to establish the ESM precisely benal funds). Here the rule of law-compliant cause the EU Treaties did not contain a speMember States would use their QMV in the cic power for the EU ‘to establish a permaCouncil to repeal the existing legislative franent stability mechanism such as the ESM’ meworks in place (for example by repealing (paragraph 105). That is clearly not the case the basic regulations establishing the CAP for the CAP or regional policy. Conversely, and the European Structural and Investment while the EU can transfer some of its powers Funds) and set up between themselves an ento another IO, Opinion 1/76 precludes the ruhanced cooperation linking EU funds to rule le of law-compliant Member States from setof law conditionality that is unacceptable to ting up an EU 2.0 to which the EU will transPoland and Hungary. If we assume that the fer the power to pursue, for example, a CAP EU’s budgetary competence is ancillary to or regional policy. That its material competenOpinion makes the transces and that it therefore fer of powers to an IO deis not an EU exclusive competence, pursuing It would make more sense to pendent on the impossibility to attain the EU’s this option seems larput all the necessary political objectives through EU gely compatible with the energy into the mechanisms common policies and the Treaty framework for enhanced cooperation as that are more readily available necessity of pursuing those objectives through the claried by the CJEU in cooperation with a third Spain and Italy v. Counstate, a condition not met cil. At least one major in casu. In addition, Opiquestion would be whetnion 1/76 also rules out recourse to such an her it would not ‘undermine the economic, incomplete mixed agreement since it prohisocial and territorial cohesion in the EU’ as bits the exclusion (even voluntary!) of Poprohibited by Article 326 TFEU. No doubt land and Hungary. the idea is here that effective adherence to the rule of law is a fundamental prerequisite As is well clear, all of the options discussed to ensure cohesion and does not undermine above would require considerable legal creacohesion. tivity and political will on the part of the rule of law-compliant Member States. While inteEstablishing a new EU (and transferring llectually interesting, it would make more powers) sense to put all the necessary political energy into the mechanisms that are more readily Finally, the possibility for the rule of lawavailable. They are already there, we just compliant Member States to establish an EU need to use them to the fullest. 2.0, without withdrawing from or dissolving the EU, and pursuing policies such as a CAP or regional policy through the EU 2.0 is precluded by the Court’s Pringle judgment. In
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So did the Report deliver on expectations? Did it meet the Commission’s stated goals? Could it or the annual rule of law cycle of which it is a part represent gamechangers for the defence of the rule of law in the EU? Could they usefully support the application of other tools in the EU’s arsenal such as Article 7 procedures or the pending rule of law conditionality regulation?
On September 30, with one democracy under its guard already burned to the ground and another in the midst of a three-alarm re, the European Commission published an obscurantist treatise on the importance of re safety and on warning signs of re risk. I am referring of course to the Commission’s rst annual Rule of Law Report. The report is the culmination of a Blueprint for Action on strengthening the rule of law in the EU published by the Commission in July 2019. In that plan, the Commission announced it would establish a new, annual Rule of Law Review Cycle or mechanism, including an Annual Report, which would promote an ongoing dialogue between EU institutions, member governments and stakeholders on the rule of law. The stated purpose of the Report was to prevent problems from emerging or deepening by monitoring and providing a basis for discussion on the situation of the rule of law in EU member states, specically on the issues of the justice system, the anticorruption framework, media pluralism, and other institutional issues related to checks and balances. Some proponents of the Report additionally claimed that by focusing on all 27 Member States, it would help counter accusations from the Governments of Hungary and Poland that they were being subject to double standards.
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Absolutely not. To understand why, we must recognise the shortcomings of the report itself, as well as consider the political context in which it is situated. A recent paper by Daniel Hegedüs of the German Marshall Fund has already addressed the profound shortcomings of the Report, so I can just summarise them briey. As he explains, “the report is undermined by soft language, the wrong time frame, and decisions not to address systemic deciencies of the rule of law in certain member states. This makes the comparative approach useless and even harmful”. First, when addressing developments in the most problematic Member States such as Hungary, Poland, and Bulgaria, the Report deploys a language of euphemisms and understatement. The Report speaks of ‘concerns’ and ‘risks’ to the rule of
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ral democratic state and entrenching the long-term rule of the dominant party’. The Report completely fails to recognise that systemic assaults on the rule of law and democracy itself are taking place - and indeed that they have already succeeded in one state - Hungary. Readers will search in vain for any mention of the fact that leading international ratings bodies such as the V-Dem Institute and Freedom House have already recategorised Hungary as the EU’s rst autocratic Member State.
law, in instances where it has already been destroyed. It refers to controversial ‘reforms’, when describing what are actually blatant assaults on the rule of law.
To be fair, the Report does recognise (albeit in euphemistic language) some of the negative developments taking place in specic areas in states such as Hungary and Poland. The efforts of the Commission civil servants who conducted research, took input from stakeholders, and reported on these developments are laudable. However, both the individual country reports and the synthetic, cross-country report, as Professor Laurent Pech put it, fail to connect the dots to present a comprehensive picture of rule of law backsliding. Anyone interested in such an overall
In short, the report fails to recognise - even at a conceptual level - the nature of the threat to the rule of law in the EU. The actual phenomenon in question in states such as Hungary, Poland, and Bulgaria is ‘rule of law backsliding’, which the experts at the EU-funded Reconnect research project dene as, ‘the process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the libe-
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damning would be to miss the political theatre involved - a set piece in which the Commission pretends to get tough on the rule of law, and Hungary and Poland pretend to be very upset about it.
picture of backsliding in EU Member States would do better to read various reports on the issue already produced by the European Parliament, annual reports by bodies such as V-Dem Institute, Freedom House, and the World Justice Project, or indeed any number of scholarly or journalistic accounts of these developments that have been published in recent years. Beyond its failures in describing rule of law backsliding, the Report also - quite intentionally - offered no recommendations for sanctioning or remedying the problems it identied. Precisely because of such shortcomings, advocates of the rule of law in the European Parliament continue to press for a distinct annual monitoring cycle on democracy, the rule of law, and fundamental rights, which would go beyond the Commission’s approach by adding country specic ‘corrective measures’ where needed, including recommending the suspension of EU funds.
In fact, autocrats and aspiring autocrats like Viktor Orbán or Jarosław Kaczyński are not bothered by anodyne reports like that published by the Commission. If there is one lesson to take from the angry reactions of the Governments of Hungary and Poland, it is that the notion that a Report looking at all 27 Member States could counter these regimes’ accusations of double standards and could facilitate constructive dialogue was fundamentally misguided from the outset. When working with democratic governments who take seriously the requirement of sincere cooperation in the EU, such dialogue might be benecial. But an emphasis on dialogue only signals weakness to aspiring or actual autocrats, and they use delays it provides to accelerate their assaults on the rule of law.
Some readers might object that the angry reactions of the governments of Hungary and Poland to the publication of the Report indicate that it must have been hard-hitting. After Commission Vice President Vēra Jourová gave interviews about the report, the Hungarian Government even declared her persona non grata in Hungary and wrote to Commission President von der Leyen calling for her removal from ofce. But to conclude from this reaction that the report was
Indeed, the biggest problem with the Commission’s Report isn’t its shortcomings, but the opportunity costs its preparation entailed. The time and political capital that the Commission spent preparing this Report would have been better spent pursuing more infringement proceedings against rule of law backsliders. The vigorous pursuit of far more rule of law related infringement cases backed up where necessary with Article 260 TFEU cases seeking penalties for noncom-
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pliance with CJEU judgments - could have a real impact. And above all, the greatest concern of autocratic leaders is the ongoing debate about introducing rule of law conditionality for the EU budget - and the prospect that the EU might eventually suspend the funding that their regimes depend on. Though the German Council Presidency is looking to watering down the existing Commission conditionality proposal from 2018 - no doubt because of the inclination of the CDU leadership to appease autocrats in the EU - major party groups in the European Parliament are insisting they will only approve the MFF and NextGenEU recovery fund if a robust rule of law conditionality system is put in place. So, Orbán’s histrionics concerning the Rule of Law Report should be understood as part of a larger game in which he and the PiS regime in Poland are trying to convince other leaders that they would be willing to veto the MFF and NextGenEU if the Council and Parliament override their objections and introduce a robust rule of law conditionality regulation by qualied majority vote. This is of course a bluff, but if the European Parliament does not stand its ground, it is a bluff that may succeed.
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News Highlights 5 October to 9 October 2020
Progress in European Citizens’ Initiative: “End the Cage Age” Monday 5 October
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The European Commission received conrmation that European Citizens’ Initiative ‘End the Cage Age’ concerning inhumane treatment of farm animals had received the support of almost 1.4 million citizens, and will meet the organisers ahead of deciding whether to present a legislative proposal or not.
Commission consulting with Member States to prolong and adjust State aid Temporary Framework in context of COVID-19 Monday 5 October
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A draft proposal was sent by the Commission to the Member States on whether to adjust the scope of and prolong the State aid Temporary Framework to support the economy in the context of the coronavirus outbreak.
Appointment of European Prosecutors: Academics call on European Parliament to take Council to court and uphold rule of law
General Court partially annuls several Commission competition inspection decisions on the ground of lack of evidence
Monday 5 October
Monday 5 October
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A number of well-known academics have published an open letter to the European Parliament asking it to take action against the Council of the European Union to uphold the rule of law: by protecting the independent panel’s selection and appointment of the European Public Prosecutor’s Ofce, in particular of the European Prosecutors who will work under the guidance of the Chief Prosecutor.
The General Court partially annulled the Commission’s inspection decisions in competition law cases: Casino, Guichard-Perrachon and Achats Marchandises Casino SAS (AMC) v Commission (T-249/17); Intermarché Casino Achats v Commission (T-254/17); and Les Mousquetaires and ITM Entreprises v Commission (T255/17).
Questions to Court of Justice published: rules for companies on indirect participation in determining minimum limit on private participation
Childbirth and maternity allowance: applicable to single permit holders under EU law? Preliminary question published
Monday 5 October
Monday 5 October
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A request for a preliminary (C-332/20) ruling made to the Court of Justice by the Italian Council of State on the interpretation of Directives 2014/23 and 2014/24, as well as of Article 107 TFEU, with reference to the Italian legislation placing limits on public participation in semi-public companies, was published.
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The Italian Constitutional Court’s request for a preliminary ruling requesting an interpretation of whether EU law extends certain social security benets to foreign nationals holding a single permit was published: O.D., R.I.H.V., B.O., F.G., M.K.F.B., E.S., N.P. and S.E.A. v Istituto nazionale della previdenza sociale (INPS) (C350/20).
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Bulk data retention for purposes of national security allowed under EU Privacy Directive under certain conditions, Court of Justice rules Tuesday 6 October
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The Grand Chamber of the Court of Justice ruled that, in principle, the EU Privacy and electronic communications Directive (2002/58) and certain EU Charter rights prevent national law from enabling bulk data retention of trafc and location data, but that those EU law rights do not preclude national measures in certain conditions concerning national security, the ght against serious crime, and protection of threats to public security, in joined cases Quadrature du Net, Privacy International and Ordre des Barreaux, C-511/18, C-512/18 and C-520/18.
Hungarian law limiting foreign higher education is incompatible with EU law, Court of Justice rules Tuesday 6 October
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The Grand Chamber of the Court of Justice ruled that a Hungarian law on higher education breaches EU free movement of services and establishment law and Article XVII of the GATS, Articles 13, 14(3) and 16 of the Charter, in Commission v Hungary (Higher education) (C-66/18), upholding the Commission’s action for failure to full its obligations under EU law.
General Court to decide whether the ap- Common EU rules on crowdfunding proval of glyphosate is in breach of the platforms: European Parliament’s approval precautionary principle Tuesday 6 October
Tuesday 6 October
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Ofcial publication was made of an action for annulment (T-496/20) brought before the General Court by a French independent scientic research organisation against the European Commission, challenging a Commission Decision against their informal appeal for the revocation of the approval of glyphosate as an active substance in plant protection products.
The European Parliament, in plenary, approved EU rules, as agreed with the Council of the EU, on a single set of common rules at EU level to apply to crowdfunding services in the EU.
Commission sends objections to Conserve Italia for alleged participation in canned vegetables cartel
Eurogroup releases its schedule up to June 2021
Tuesday 6 October
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The European Commission sent a Statement of Objections to Italy-based Conserve Italia Soc. coop. Agricola, as well as its French subsidiary Conserves France SA (‘Conserve Italia’), due to a preliminary view that Conserve Italia has breached EU competition law provisions by colluding to distort competition in the market for canned vegetables in the European Economic Area.
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Tuesday 6 October
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The Eurogroup released its work programme and proposed agenda for its upcoming meetings until June 2021. Economic recovery post-COVID-19 pandemic, as well as returning to long-term growth, will dominate the policy discussions and objectives, but the Eurogroup will also be focusing on other priorities such as the Banking Union and a digital euro-currency.
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General Court dismisses action challenging the Community dimension of a transaction Tuesday 6 October
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Court of Justice’s ruling clarifying EU rules on social assistance to be provided by host Member States to employment seekers with children
The General Court dismissed an annulment action in competition case HeidelbergCement and Schwenk Zement v Commission (T-380/17), which challenged a European Commission decision on the grounds that it lacked competence to review the transaction at issue, given that it did not have a Community dimension within the meaning of Article 1(2) of the Merger Regulation.
Tuesday 6 October
Court of Justice: Grand Chamber ruling on the administrative request of tax information and the right to an effective remedy
FRA publishes report on access to justice of victims of corporate human rights violations
Tuesday 6 October
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The Court of Justice rendered its judgment in Jobcenter Krefeld (C-181/19) on the interpretation of Citizens’ Rights Directive 2004/38, Social Security Coordination Regulation 883/2004, and Regulation 492/2011 on freedom of movement for workers within the EU, and the extent of the social assistance which a host Member State must provide in respect of a former migrant worker seeking employment who is the primary carer of his two children attending school in that State.
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The Grand Chamber of the Court of Justice gave its judgment in État luxembourgeois (joined cases C-245/19 and C-246/19), a preliminary ruling on the compatibility with the Charter of certain requests of tax-related information and of national rules precluding judicial review thereof.
Tuesday 6 October
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The EU Agency for Fundamental Rights published a report on the access to justice of victims of corporate human rights violations. It is based on interviews conducted by FRA with business and human rights experts and practitioners from Finland, France, Germany, Italy, the Netherlands, Poland, Sweden and the UK.
General Court rules it has no jurisdiction to hear actions against decisions of the Conference of the Representatives of the Member States
European Court of Human Rights calls on Armenia, Azerbaijan and Turkey to refrain from infringing ECHR rights in ongoing armed military conflict
Wednesday 7 October
Wednesday 7 October
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The General Court dismissed as manifestly inadmissible three actions for annulment brought by former Advocate General Sharpston concerning the early termination of her mandate as Advocate General in T-180/20, T184/20 and T-550/20.
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The European Court of Human Rights issued a press release stating that it has decided to apply a second set of interim measures in light of the escalation of the Armenia-Azerbaijan armed border conict, calling all States directly or indirectly involved – including Turkey – to comply with ECHR obligations and refrain from infringing the ECHR rights of civilians.
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Code of Practice on Disinformation: update on reports received from Signatories Wednesday 7 October
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European Ombudsman: no maladministration in the CJEU’s response to a request for information concerning the ECtHR
A second set of reports from Signatories on how they are applying the voluntary EU Disinformation Code have been published today, specically on the ght against false and misleading information concerning the COVID-19 pandemic. The Commission noted that there are substantial gaps in the data provided by signatories, and that more complete, targeted and detailed quantitative data must be provided.
Wednesday 7 October
EU-Ukraine Summit joint statement: main takeaways
Progress in the Mandatory Transparency Register negotiations
Wednesday 7 October
Wednesday 7 October
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The European Ombudsman issued a decision that no maladministration existed in how the Court of Justice of the EU dealt with a request for information about the European Court of Human Rights.
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The 22nd EU-Ukraine summit took place on 6 October with discussions on the recovery from the pandemic, the next steps in the implementation of the Association Agreement and the state of reforms in Ukraine, as well as other foreign policy issues, notably the situation in Belarus and the situation in Eastern Ukraine.
The rst signs of progress in the negotiations for the Mandatory Transparency Register emerged following the rst political meeting of the three EU institutions since negotiations resumed on 16 June.
General Court dismisses staff action: expatriation and travel allowances can be withdrawn if Member State nationality is acquired in response to Brexit
Commission accepts chipmaker Broadcom’s commitments concerning exclusivity clauses to settle abuse of dominance case
Wednesday 7 October
Wednesday 7 October
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The General Court has dismissed the annulment action in Brown v Commission (T-18/19), brought by a British employee of the European Commission against a decision withdrawing his entitlement to an expatriation allowance and payment of travel expenses, as he had acquired Belgian nationality after the Brexit referendum result.
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In 2019, the European Commission investigated an alleged abuse of dominance by Broadcom in breach of Article 102 TFEU in three distinct markets. It also issued an interim measures-decision, but has now announced that it has accepted Broadcom’s commitments to address those concerns.
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SURE: Commission launches Social Bond Framework and announces issuance of up to 100 billion euros as social bonds Thursday 8 October
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The European Commission announced that it will issue up to 100 billion euros as social bonds under Regulation 2020/672 on the establishment of a European instrument for temporary Support to mitigate Unemployment Risks in an Emergency (SURE) following the COVID19 outbreak.
ECtHR: dissolution of extreme rightwing entities does not breach ECHR Thursday 8 October
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The European Court of Human Rights gave its judgment in Ayoub and Others v. France (applications nos. 77400/14, 34532/15 and 34550/15), unanimously declaring that the administrative dissolution of an extreme right-wing entity by French authorities did not breach the freedom of assembly and association, read in light of the freedom of expression, in Articles 11 and 10 of the European Convention on Human Rights (ECHR) respectively.
Parliament approves resolution on the establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights
AG Pikamäe’s Opinion on the jurisdiction of Member States’ courts concerning claims related to excise duties issued in another Member State
Thursday 8 October
Thursday 8 October
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The European Parliament plenary adopted, by a landslide vote, a proposal for the establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights.
Advocate General Pikamäe issued his Opinion in Agenzia delle Dogane v Silcompa SpA (C-95/19), concerning the coordination of the provisions of Directive 92/12 on the general arrangements for products subject to excise duty and of Directive 76/308 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures.
Investment fund management services provided for occupational pension schemes, which do not provide risk indemnity are not exempt from VAT, Court of Justice finds
Junqueras i Vies v Parliament: VicePresident of the Court of Justice upholds General Court’s dismissal of interim measures
Thursday 8 October
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The Court of Justice handed down its judgment in United Biscuits (Pensions Trustees) and United Biscuits Pension Investments (C-235/19), a request for a preliminary ruling by the Court of Appeal of England & Wales on the interpretation of Article 135(1)(a) of the VAT Directive.
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Thursday 8 October
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The Vice-President of the Court of Justice adopted an order in Junqueras i Vies v Parliament (C-201/20 P(R)) dismissing the cassation appeal lodged by Mr Junqueras against the Order of the Vice-President of the General Court in T-24/20. In the latter, the appellant’s request for interim measures in respect of the European Parliament’s decision of 13 January 2020 was dismissed.
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Court of Justice finds that use of goods under the UCC’s inward processing procedure refers only to the operations not authorised by customs authorities within that procedure Thursday 8 October
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The Court of Justice delivered its judgment in Combinova (C-476/19), a case concerning the interpretation of the term ‘use of goods’ in the inward processing procedure of the Union Customs Code (UCC), which allows for the processing of goods imported from outside the customs territory of the EU before a nal decision is made on whether the nished products will be sold within the EU or re exported without incurring in a customs debt.
Advocate General Hogan: General Court’s judgment in cartel-related Pometon case breached the principle of equality in the calculation of the fine Friday 9 October
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Advocate General Hogan delivered his Opinion in the cartel procedure-related Pometon SpA v European Commission (C-440/19 P), an appeal against the General Court’s judgment in Pometon v Commission (T433/16), advising that the Court of Justice set it aside.
Ag’s Opinion on the mutual recognition of judgments in aggregated criminal procedures Friday 9 October
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Advocate General De la Tour delivered his Opinion in AV (Jugement global) (C-221/19), on the interpretation of Council Framework Decision 2008/675/JHA in the context of whether a conviction handed down in Member State B may be taken into account in an aggregated judgment procedure occurring in Member State A, and where the enforcement of the previous conviction has been transferred to Member State A.
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Nº32 · OCTOBER 10, 2020
weekend
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Acquisitions by Joint Ventures and Com- La Quadrature du Net e.a. : balancing munity Dimension: The General Court data retention with general interests Reaffirms the Notion of ‘Undertakings and the right to security…again Concerned’ in HeidelbergCement and By Catherine Van de Heyning READ MORE ON EU LAW LIVE Schwenk v. Commission (T-380/17) Op-Ed on the Court of Justice’s ruling in joined cases La
By David Pérez de Lamo
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Analysis of the General Court’s rm rejection of all arguments in an annulment action brought by HeidelbergCement and Schwenk against the Commission’s Decision (M.7878) to prohibit the acquisition of Cemex’s Hungarian and Croatian subsidiaries through their fullfunction joint venture (T-380/17).
Quadrature du Net e.a. (C-511/18, C-512/18 and C520/18) on the retention of communication data, in which the Court developed a more detailed framework for the retention of communication data in an attempt to strike the right balance between privacy and security.
CJEU rules that the VAT exemption for insurance services does not apply to investment fund management services not providing any indemnity for risk
The extinguishment of a customs debt incurred through non-compliance: mitigating the impact of formalism in customs
By Jordi Sol
By Philippe Heeren
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Analysis highlighting certain arguments of the Court of Justice’s ruling in United Biscuits (Pensions Trustees) and United Biscuits Pension Investments (C-235/19): that investment fund management services supplied for an occupational pension scheme which do not provide any indemnity from risk are not covered by an EU VAT Directive exemption.
Analysis of the Court’s ruling in Combinova (C476/19), a clarication on the ‘use of goods’ in the inward processing procedure of the Union Customs Code (UCC) in order to assess whether a customs debt has been incurred, conrming that this use refers to operations other than those that are authorised by the customs authorities under the special procedure, and leading to some alignment with VAT and excise rules
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