Weekend Edition Nº138

Recalibrating the deterrent effect

Commission revises sanctions methodology: Update of ‘EU Law Live Sanctions Calculator’

Albrecht Wendenburg 1

e Commission Communication ‘Financial sanctions in infringement proceedings’ of 4 January 2023 (2) is interestingfortworeasons:Itcontainsanexecutivesummaryofwhathaspreviouslybeenscaeredinvariouscommunications since 1996. Moreover, the Communication introduces important changes to the Commission’s methodology for calculatingsanctions SomeofthesechangeswillaffectallEUMemberStates(MSs)equally Others,however,arelikelytoimpacttheMSsveryunevenly,leadingtomuchhigherorlowersanctionsacrossdifferentMSsinthefuture.

Also, the Communication calls for an update of the ‘EU Law Live Sanctions Calculator’ which can be accessible here: hps://eulawlive com/calculator 2023 xlsx,andinthelinkbelow(3) e‘SanctionsCalculator’canbeusedtoaach aninformed‘pricetag’toEUlawviolations.

EU Law Live Sanctions Calculator DOWNLOAD HERE

1)Generalprinciples

Firstlyweshallconsiderthegeneralprinciples(4) underlyingthecalculationofsanctionsininfringementcases.Inasecondstep,wewillthenbeabletotrackandevaluatethechangesintroducedbytheCommunication.

a)eCourtofJustice(theCourt)mayimposenancialsanctionsonaMSintwosituations:

1. Albrecht Wendenburg, Dr. jur., LL.M., Head of Unit, European law at the Ministry for Europe of Lower Saxony, Germany, and Lecturer in European law at LeuphanaUniversity,Lüneburg,Germany eviewssetoutinthisarticle arestrictlypersonal.

2.Communication ,OJ2023C2/1(hereinaer‘2023Communication’).2023/C2/01

3. Concerning cases which have been brought following a decision of the Commission taken before 5 January 2023, the 2022 version of the ‘Sanctions Calculator’ mustbe used, see . For more information on the workings of the ‘Sanctions calculator’ see Albrecht Wendenburg, here Introducing the ‘EU Sanctions Calculator’forInfringementCases,EULawLiveWeekendEdition2022,No 103.

• Firstly, where the MS has not taken the necessary measures to comply with an earlier judgment of the Court nding an infringement of Union law (Article 260(2) TFEU) is procedure has been introduced with the Treaty of Maastricht in 1993 It can be called the ‘twostage infringement procedure’, as there will always be a rst judgment based on Articles 258 and 260(1) TFEU which is of declaratory nature,only;

•Secondly,sanctionsarepossiblewhereaMShasfailedtofullitsobligation to notify measures transposing a directive adopted under a legislative procedure (Article 260(3) TFEU). As only one judgment is required, this procedure, which was introduced with the Treaty of Lisbonin2009,canbecalledthe‘one-stageinfringementprocedure’(5).

b) e Commission systematically proposes to the Court to impose bothalumpsumandapenaltypaymentontheMSconcerned.

• e lump sum payment is meant as a repressive tool to punish the infringement which has already occurred when the Court delivers the judgment imposing sanctions. If a MS recties the infringement during the Court proceedings,theCommissiondoesnotwithdrawitsactionbutmaintainsitsclaimtoimposealumpsum.

• By contrast, the (daily) penalty payment is a preventive instrument to prompt the MS concerned to bring the infringementtoanendassoonaspossibleaerthedeliveryofthejudgment.

c) Generally, it is for the Court to determine the kind and the level of sanctions (Article 260(2) paragraph 2 and Article 260(3), paragraph 2 TFEU) Having conrmed the Commission’s methodology as such (6), the Court tends broadly to follow the Commission’s application, oen rounding off the proposed sanctions. In ‘one-stage infringement proceedings’, the Court may, however, not exceed the amount specied by the Commission (Article 260(3) paragraph2TFEU).

Having set out these general principles, we are now able to track the changes introduced by the present Communication.ebenchmarkwillbethelastupdateofFebruary2022(7).Differentiatingbetweenpenaltypaymentsandlump sums, we will be able to see whether the MSs are equally affected or not and whether both types of infringement procedures(‘one-‘or‘two-stage’)areimpactedoronlyoneofthem

5. See Albrecht Wendenburg, , EU Failure to notify national measures - e ‘one-stage infringement procedure’(Article 260(3) TFEU) is gaining momentum LawLiveWeekendEdition2020,No 29.

6. See for instance Judgmentof the Court of Justice of 4 July 2000, Commission v Greece (C-387/97,ECLI:EU:C:2000:356, paras 84 et seq.). But see below point 2d)concerningthe‘nfactor’

7. Communication from the Commission, Updating of data used to calculate lump sum and penalty payments to be proposed by the Commission to the Court ofJusticeoftheEuropeanUnionininfringementproceedings,(2022/C74/02),OJ2022L74,p 3.

e ‘Sanctions Calculator’ can be used to aach an informed ‘price tag’ to EU law violations

2)Calculationofpenaltypayments

epenaltypayments (8) aretheproductoffourfactors:

•e‘atrateamountforcalculatingpenaltypayments’(a);

•the‘coefficientforseriousness’(b);

•the‘coefficientforduration’(c);and

• the ‘ n’-factor (d). e ‘ n’-factor is there to avoid purely symbolic penalties and to serve as a deterrent for the MS. GiventheobviousdifferencesinGDPandpopulation,thisfactorvariesbetweentheMS.

Aer examining the novelties that the Communication introduces with regard to those four factors, this contribution willtestthosenoveltiespresentingsomesamplecalculations(e)

a) e Communication increases the ‘at-rate amount for penalty payments’ from 2,726 euros (in 2022) to 3,000 euros.isincreaseaffectsallMSandbothtypesofinfringementproceduresequally.

b) Concerning the ‘coefficient of seriousness’, the Communication calls into mind that two general criteria are essentialtoevaluatetheseriousnessoftheinfringementwithinarangeof1-20:

•theimportanceoftheprovisionsbreached;and

•theeffectsoftheinfringementongeneralandparticularinterests

8.2023Communication (Fn.2),para3andAnnex1.

By contrast, ‘internal circumstances’, i e , ‘provisions, practices or situations prevailing in the domestic legal order of a MS’, cannot be invokedinordertoreducethecoefficientforseriousness (9).

Concerning the ‘two-stage infringement procedure’ (Article 260(3) TFEU), a long list of criteria (10), specifying and updating theestablishedpracticeisprovided,whichisveryuseful.

Focusing on ‘one-stage infringement procedures’ (Article 260(3) TFEU),theCommunicationstatesthatitwillsystematicallyapplya ‘coefficient for seriousness’ of 10 in case of a complete failure to notify transposition measures. is statement is signicant. A ‘coefficient for seriousness’ of 10 (range 1-20) means that, in the eyes of the Commission, the failure to notify the transposition of a directive qualies as a serious infringement, leading to heavy sanctions is statement reects the Commission’s recent practice and elucidates why the Commission relies heavily on the ‘one-stage infringement procedures’since2016 (11).iswillaffectallMSsalike.

e failure to notify the transposition of a directive qualies as a serious infringement, leading to heavy sanctions

c) e ‘coefficient of duration’ is expressed as a multiplier of between 1 and

3. It is calculated at a rate of 0.10 per monthfromtherelevantstartingdateuptothedatetheCommissiondecidestoreferthemaertotheCourt:

•concerning‘two-stageinfringementprocedures’(Articles258,260(1)and(2)TFEU),thestartingdateisthedeliveryoftherst(declaratory)Courtjudgment;

• for actions brought under Article 260(3) TFEU (‘one-stage infringement procedures’), the starting date is the day following the expiry of the deadline for transposition of the directive in question. is is remarkable, as the Court has declared only in 2021 that the relevant starting date should be the expiry of the deadline laid down in the reasoned opinion according to Article 258(1) TFEU (12) As the relevant period will now start several months earlierthansuggestedbytheCourt,allMSscanexpecthigher(daily)penaltypaymentsin‘one-stageinfringementprocedures’.eprolongedperiodwillconcernallMSsalike.

9. Kindly note my criticism of this rigidity: Albrecht Wendenburg, ‘e one-stage infringementprocedure (Article 260 (3) TFEU) and the irrelevance of politicalcrisesinMemberStatesintherecentcaselawoftheCJEU’,54RevistaGeneraldeDerechoEuropeo,2021,p 74(p 98).

10.2023Communication (Fn.2),para3.2.1.

11. 2023 Communication (Fn. 2), para 2.2: ‘is is not only a maer of safeguarding the general interests pursued by Union legislation, but also and above all of protecting the interests of European citizens who enjoy the rights and benets owing from such legislation. Delays are unacceptable in both respects Ultimately,thecredibilityofUnionlawasawholeisunderminedwhenaMemberStatetransposesUnionlegislation intonationallawlaterthanitshould.’ 12. ,CommissionvSpain(C-658/19,EU:C:2021:138,para 67).

JudgmentoftheCourtofJusticeof25February2021

d) e most important modication concerns the composition of the country-specic ‘ n factor’ which calibrates the deterrent effect according to the individual MS’s capacity to pay. Previously, the ‘ n factor’ reected also the ‘institutional weight’ of a MS. is sub-criterion was dened by the number of seats allocated to the MS in the European Parliament Mirroring the degressive proportionality in the European Parliament (Article 14(2) TEU), this criterion put large MS (with relatively fewer seats) in a beer position than smaller MS (with relatively more seats) (13) On 20 January 2022, however, the Court has declared this sub-criterion invalid (14) Since then, a behind-thescenes struggle has gone on as to how the ‘ n factor’ should be redened (15). In the formula now proclaimed, the Commission considers the GDP of the MS with a ratio of 2/3 and the population of the MS with a ratio of 1/3 (16) e laer criterion may mitigate the effect of a purely GDP-based approach. erefore, the new formula for the ‘ n factor’ may be seen as a model compromise.

How does this change recalibrate the deterrent effect in practice?

Now, the n-factor varies between 0.03 (Malta) and 6.16 (Germany). Previously, the range was 0.08 (Malta) to 5 (Germany). Not only are the consequences for these two MSs signicant. Also, on a more general level, we can observe that the ‘penalty gap’ between the MSs widens more than threefold: while Germany could previously be ned 62.5 times heavier than Malta, a factorof205.3(6.16/0.03)isnowpossible.

As we have seen, the revision of the ‘ n factor’ impacts the level of sanctions for the individual MSs very unevenly. While MSs with a high GDP and a large population face much heavier sanctions, the opposite is true for MSs with a rather low GDP and a small population Average MSs, such as the Netherlands (+3 7 %) are notassignicantlyimpactedbytherecalibrationofthe‘ nfactor’.

13. Albrecht Wendenburg, ‘ ’ , EU Law Live, Goodbye to the ‘Sanctions Rebate’ for Large Member States in Infringement Procedures?: ‘Ferronickel’ (C-51/20) Op-Edof1February2022.

14. ,CommissionvGreece(C-51/20,EU:C:2022:36). JudgmentoftheCourtofJusticeof20January2022

15. Minutes, , p. 5: ‘One Member State suggested the use of GDP per capita as a frequently used indicator Meeting of the EU Law Network of 15 December 2022 on a global scale to measure prosperity of a country e Commission indicated that this criterion has been considered carefully but that it was concluded that itisnotthemostreliablecriteriatodeterminetheamountofthenancialsanction,asthesizeoftheeconomyandofthestatebudgetalsoneedstobeconsidered.’

16.2023Communication (Fn.2),para3.4.

As the relevant period will now start several months earlier than suggested by the Court, all MSs can expect higher (daily) penalty payments in ‘one-stage infringement procedures’

e most important modication concerns the composition of the country-specic ‘n factor’

e) Sample calculations: As a hypothetical example, let us assume that France has failed to notify the Commission of its transposition measures in respect to a directive both before the transposition deadline of, say, 31 January 2022 and during the entire court proceedings is will now lead to a ‘coefficient for seriousness’ of 10. In our hypothetical example and in line with its internal guide he Commission lines (17), t has decided to refer the case to the CJEU on 31 January 2023. is leads to a ‘coefficient of duration’ of 1 2 (12 months) In this scenario, France would face daily penalties of 160,200 euros (see Sample calculation 1) By means of the ‘Sanctions Calculator’, this calculation can be varied at will. Cyprus, for example, would have to pay 1,800 euros per day in this scenario(Samplecalculation2)

Sample calculation 1

Sample calculation 2

17. 2023 Communication (Fn. 2), para 2.2: ‘e Commission has for its part set itself a target of 12 months to refer infringement cases to the Court if the failure totransposeadirectivepersists.’

e ‘penalty gap’ between the MSs widens more than threefold

3.Calculationoflumpsums

Let’s now look at the changes to the calculation of lump sums resulting from the present Communication. e lump sumistheproductoffourfactors,limitedbyahfactor:

•e‘standardat-rateforcalculatingthedailyamountinordertodeterminethelumpsum’(a);

•the‘coefficientforseriousness’(b);

•the‘coefficientforduration’(c);and

•the‘ n’-factor(d);

• A MS-specic ‘minimum lump sum’ will apply, if the product of the above four factors is lower than the MSspecic‘minimumlumpsum’(e)

Aerpresentingthenoveltiesconcerningthesefactors,Iwilloffersomesamplecalculations(f).

a) When calculating lump sums, there is a lower ‘standard at-rate’ In the Communication, this ‘standard at-rate for calculating the daily amount in order to determine the lump sum’ is increased from 909 euros to 1,000 euros. is increasewillaffectallMSsandbothtypesofinfringementprocedures(‘one-’and‘two-stage’)alike.

b) e ‘coefficient of seriousness’ is applied in the same way as for the calculation of the penalty payments Hence, concerning ‘one-stage infringement procedures’ (Article 260(3) TFEU), we should expect a ‘coefficient for seriousness’of10incaseofacompletefailuretonotifytranspositionmeasures.iswillaffectallMSsinthoseprocedures.

c) Concerning the ‘coefficient for duration’ and in contrast to the calculation of (daily) penalty payments, there is no xed range concerning the duration of the infringement Instead ‘the number of days the infringement persists’ is taken as a multiplier. is number of days is, again, measured differently depending on the type of infringement procedure.

• For two-stage infringement procures (Article 260(2) TFEU), this is the number of days between the date of the delivery of the rst judgment and the date the infringement comes to an end, or, failing compliance, the date of the deliveryofthesecondjudgmentwhichwillimposethesanctions;

• For one-stage infringement procedures (Article 260(3) TFEU), this is the number of days between the day aer the expiry of the deadline for transposition set out in the directive at issue and the date the infringement comes to anend,or,failingcompliance,thedateofthedeliveryofthe(only)judgment.

esecriteriahavebeennotbeenalteredwiththepresentCommunication.

d) e ‘ n factor’ is applied in the same way as for the calculation of the penalty payments. Again, we can therefore observeahighlydifferentimpactontheindividualMSsinbothtypesofinfringementprocedures.

e) In case the product of the above four factors is lower than the socalled ‘minimum lump sum’ for the specic MS, that ‘minimum lump sum’ will apply. is will guarantee a sufficient deterrent effect and avoid purely symbolic sanctions. e ‘minimum lump sum ’ , too, has been updated in the Communication. e result mirrors the opening of the ‘sanctions gap’ between the MS we have already observed (2d): Untilnow,theminimumlumpsumdifferedfrom180,000eurosforMalta to 11,277,000 euros for Germany (19). Now it ranges between 84,000 euros for Malta and 17,248,000 for Germany. In other words, the minimum lump sum has been reduced by 53% for Malta and increased by 52%forGermany

is was to be expected following the elimination of the mitigating sub-criterion of ‘institutional weight’ concerning the ‘ n factor’ (20). However, it is interesting to read that only in December 2022 the Commission has assured the MSs which had expressed their disquiet “that most Member States would see their sanctions generally remain in the same rangeaspreviously.(21)”

f)Samplecalculations

e'EUSanctionsCalculator2023'canalsomapthechangestothelumpsums Intheexamplegivenabove,theminimum lump sum for France (12,460,000 euros) would be exceeded (lump sum of 16,242,500 euros, see Sample calculation 3). By contrast, in a ‘two-stage infringement procedure’ with a low ‘coefficient of seriousness’ the minimum lumpsumwouldapplyceterisparibus(Samplecalculation4).

Oneadditionalobservationcanbemadeusingthe‘SanctionsCalculator’:the‘minimumlumpsum’willalwaysbeexceeded in ‘one-stage infringement procedures’ in case of a complete failure to notify transposition measures. Irrespective of the MS chosen, based on a coefficient of 10, the minimum lump is always exceeded once the relevant time spanexceeds 281days is willhoweveralwaysbethecase,asthis periodstartswiththerstdayofdelayofthetransposition,already(above3b)

19.2023Communication (Fn.2),Annex1,para5.

20. Albrecht Wendenburg, ‘ ’ , EU Law Live, Goodbye to the ‘Sanctions Rebate’ for Large Member States in Infringement Procedures?: ‘Ferronickel’ (C-51/20) Op-Edof1February2022.

21.Minutes, ,p 5. MeetingoftheEULawNetworkof15December2022

e minimum lump sum has been reduced by 53% for Malta and increased by 52% for Germany

e ‘minimum lump sum’ will always be exceeded in ‘one-stage infringement procedures’ in case of a complete failure to notify transposition measures

4)Summary

eCommunicationthuscombines:

• the necessary reform of the redenition of the ‘ n factor’ (resulting in an opening of the ‘sanctions gap’ between the MS),

•amorerigorousmethodologywithregardto‘one-stageinfringementprocedures’(Article260(3)TFEU)and ination-relatedadjustments.

econsequencescanbegroupedasfollows:

• Some changes affect all MS and both types of infringement procedures (‘one-stage‘, Article 260(1 - 2) TFEU and (‘two-stage,Article260(3)TFEU)alike:

··theincreaseofthe‘at-rateamountforpenaltypayments’;and

·theincreaseofthe‘standardat-rateforcalculatingthedailyamountinordertodeterminethelumpsum ’

• Other changes concern the MSs very differently (according to their GDP and number of inhabitants) in both typesofinfringementprocedures:

·therecalibrationofthe‘ nfactor’,affectingbothpenaltiesandlumpsums;and

·thechangestotheMS-specic‘minimumlumpsums ’

• Still other features only impact ‘one-stage’ infringement procedures’ (Article 260(3) TFEU) while, again, affectingallMSsinthesameway:

·· the ‘coefficient for seriousness’ of 10 in case of a complete failure to notify transposition measures, affecting both penaltiesandlumpsums;

·· e higher ‘coefficient of duration’ due to earlier start date of the relevant time period concerning the (daily) penaltypayment;

·Asaconsequenceoftheabove,the‘minimumlumpsum’willalwaysbeexceededin‘one-stageinfringementprocedures’.

10

to 21 April 2023

General Court to hear two actions for annulment brought by the Data Protection Commission against the European DataProtectionBoard

Tuesday 11 April

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Official publication was made of two actions for annulment brought by the Data Protection Commission (DPC) against the European Data Protection Board (EDPB) concerning decisions on the dispute submied by the Irish SA pursuant to Article 65 GDPR on Meta Platforms Ireland Limited and its Instagram service and on WhatsApp Ireland Limited: cases Data Protection Commission v European Data Protection Board (Case T-84/23) and Data Protection Commission v EDPB (CaseT-111/23).

Court of Justice to rule on a request for a preliminary ruling on the compatibility of national rules on conscation orderswithEUlaw

Tuesday 11 April

e Court of Justice was requested to render a preliminary ruling regarding the interpretation of Directive 2014/42, Council Framework Decision 2005/212, and the Charter of Fundamental Rights, in relation to a pending case before the Latvian Constitutional Court, concerning a ruling of a national court by which the conscation of the proceeds of crime hasbeenordered.

Preliminary ruling request on the interpretation of the Electricity Directive publishedinOJ

Tuesday 11 April

Official publication was made of a preliminary ruling request from the Markkinaoikeus (Finland) in a case concerning the independence of the national regulatory authority with regards to the Electricity Directive: Alajärven Sähkö Oy and Others,EleniaVerkkoOyjvEnergiavirasto(CaseC-48/23)

General Court to hear an action for damages brought by the Court of Auditors of the European Union against Allianz Insurance Luxembourg – Published

in

Tuesday 11 April

OJ

Official publication of an action for damages, brought by the CourtofAuditorsoftheEuropeanUnionagainstAllianzInsurance Luxembourg, in accordance with Article 272 of the TFEU, was made regarding a claim for damages, resulting from incidents arising within the context of a civil liability insurance contract, established between the applicant and the defendant: case Court of Auditors vs Allianz Insurance Luxembourg(CaseT-93/23).

Court of Justice to clarify the corrective powersofthesupervisoryauthorityunderArticle58(2)(c)oftheGDPR

Tuesday 11 April

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A request for a preliminary ruling was published in the Official Journal in a case concerning the interpretation of Article 58(2)(c) of the GDPR: Újpesti Polgármesteri Hivatal (C-46/23).

Commission Decision laying down rules for the application of Regulation 1367/2006 as regards requests for the internal review of administrative acts oromissions,publishedinOJ

Wednesday 12 April

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Official publication was made of Commission Decision 2023/748layingdowndetailedrulesfortheapplicationofRegulation1367/2006asregardsrequestsfortheinternalreview of administrative acts or omissions, in line with the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in EnvironmentalMaerstoUnioninstitutionsandbodies.

Court of Justice to rule on the recognitionofprofessionalqualicationsinbasic medical training issued by a third State and recognised by another MemberState

ursday 13 April

A request for a preliminary ruling was lodged by the Conseil d’État (France) concerning the recognition of professional qualications of a specialised doctor among Member States was published in the Official Journal: Conseil national de l’ordredesMédecins(C-8/23).

Court of Justice to rule on the statute of Italian lay judicial officers concerning xed-term work and organisation of workingtime

Wednesday 12 April

A request for a preliminary ruling was lodged by the Consiglio di Stato (Italy) on the interpretation of Council Directive concerning the framework agreement on xed-term work and Directive2003/88/ECconcerningcertainaspectsofthe organisation of working time, was published in the Official Journal:Peigli(C-41/23)

Court of Justice to clarify the concept of ‘company service provider’ under Article3(7)(c)ofmoneylaunderingDirective

–PublishedinOJ

Wednesday 12 April

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Official publication was made for a preliminary ruling from the Administratīvā rajona tiesa (Latvia) in a case concerning the provision of leing services by a natural person, that does notarisefromatransaction,inrelationtotheconceptof‘ company service provider’, as prescribed by Article 3(7)(c) of Directive 2015/849 on the prevention of the use of the nancial system for the purposes of money laundering or terrorist nancing: SIA Citadeles nekustamie īpašumi v Valsts ieņēmumu dienests(CaseC-22/23)

Consultation Paper proposing amendments to the Delegated Regulation of the Sustainable Finance Disclosure Regulation released by the European SupervisoryAuthorities

ursday 13 April

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e European Supervisory Authorities (EBA, EIOPA, and ESMA) published a Consultation Paper proposing amendmentstotheDelegatedRegulationoftheSustainableFinance DisclosureRegulation(SFDR).

ursday 13 April

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Official publication was made for a preliminary ruling from the Verwaltungsgericht Osnabrück (Germany) in a case concerning a blanket ban imposed by German authorities in regardtothemarketing,use,andprocessingoffeedadditives,resultingfromalackofauthorization,asrequiredbyspecicprovisions of Regulation 1831/2003 on additives for use in animalnutrition

Digital Launch Conference of the OUP Online Encyclopedia of EU Law, CollegeofEurope,21April2023

ursday 13 April

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On 21 April 2023, the College of Europe organised a webinar celebrating the launch of the OUP Online Encyclopedia of EU Law, discussing the ‘Reections on the Present and FutureoftheStudyandPracticeofEUlaw’.

ECtHR: removal of a kidney without consent or knowledge in breach of ECHR

ursday 13 April

Commission refers Statement of Objections to Broadcom over its proposedacquisitionofVMware

ursday 13 April

e Commission informed Broadcom, a US-based hardware companyactiveintheproductionofNICs,FCHBAs,andstorage adapters, of its preliminary view that its proposed acquisition of VMware, a US-based soware company that mainly offers virtualization soware, may restrict rules on EU competitionlaw

EDPB adopts decision on legality of Meta data transfers to the US and sets upChatGPTtaskforce

ursday 13 April

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e European Data Protection Board (EDPB) adopted a dispute resolution decision concerning a dra decision adopted by the Irish Data Protection Authority (DPA) on the legality of data transfers to the United States by Meta Platforms IrelandLimited(MetaIE)forFacebook.

Commission reimposes anti-dumping duties on stainless steel tube and pipe bu-welding ings from China and Taiwan

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e European Court of Human Rights (ECtHR) delivered its judgment in Mayboroda v Ukraine (application no 14709/07), ruling that the failure to protect Ms. Mayboroda’s right to informed consent infringed Article 8 ECHR (right to respectforprivateandfamilylife).

Friday 14 April

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Official publication was made of Commission Implementing Regulation 2023/809 imposing a denitive anti-dumping duty on imports of certain stainless steel tube and pipe buwelding ings, whether or not nished, originating in China and Taiwan following an expiry review pursuant to Article 11(2) of Regulation 2016/1036 on protection against dumped imports from countries not members of the European Union.

Court of Justice to rule on the compatibility of regulation on additives for use in animal nutrition with the principle of proportionality as enshrined in Article 52(1)oftheCharter–PublishedinOJ

Council to grant €1 billion support to Ukrainian Armed Forces under the EuropeanPeaceFacility

Friday 14 April

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e Council approved a €1 billion assistance measure under the European Peace Facility (EPF) to support the Ukrainian ArmedForces.

Council adds Wagner Group and RIA FAN added to the sanctions list against Russia

Friday 14 April

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e EU added the Wagner Group and RIA FAN to its sanctionslistforactionsthatthreatentheterritorialintegrity,sovereignty,andindependenceofUkraine

Court of Justice to rule on the compatibility of a Member State’s decision to refuse an application for residence of a thirdcountrynationalwithEUlaw

Monday 17 April

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Official publication was made for a preliminary ruling requested from the Conseil d’État (Belgium) in a case concerning a refusal of a residence application, by the Belgian authorities, of a third-country national, following serious and objective grounds that the applicant would reside for purposes other thantheonetheyappliedfor.

Commission Releases Detailed Rules for Conducting Proceedings under the DigitalMarketsAct

Monday 17 April

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Official publication was made of Commission Implementing Regulation 2023/814 on detailed arrangements for the conduct of certain proceedings by the Commission pursuant to Regulation2022/1925(DigitalMarketsAct-‘DMA’).

General Court to hear an action for damages brought by ABLV Bank against ECBandSRB

Monday 17 April

Official publication was made of an action for damages brought by ABLV Bank against the European Central Bank (ECB) and the Single Resolution Board (SRB), concerning the resolution scheme with regard to ABLV Bank (Latvia) and its Luxembourgish subsidiary, ABLV Luxembourg: ABLVBankvECBandSRB(T-71/23).

CourtofJusticetohearanappealofGeneral Court judgment in Firearms UnitedNetworkandOthersvCommission

Monday 17 April

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Official publication was made of an appeal sought by the Firearms United Network and Others against the judgment of the General Court in Firearms United Network and Others v Commission(CaseT-187/21,)

Commission prolongs Motor Vehicle Block Exemption Regulation and updatestheSupplementaryGuidelines

Monday 17 April

e European Commission prolonged the Motor Vehicle Block Exemption Regulation for ve years and updated the Supplementary Guidelines for the sector, which will help companies in the automotive sector assess the compatibility of their vertical agreements with EU competition rules while ensuring that aermarket operators, including garages, continue to have access to vehicle-generated data necessary for repairandmaintenance

In-depthStateAidinvestigationintoRomanian support measures for Blue Air Aviationairline

Monday 17 April

e European Commission launched an investigation into whether certain Romanian support measures for airline Blue AirAviationcomplywithEUstateaidregulations.

Court of Justice: EU Law precludes national legislation mandating in-person submission of family reunication applications, without exception, at a competentdiplomaticpost

Tuesday 18 April

Commission launches European Center for Algorithmic Transparency to enforceDSAobligations

Monday 17 April

e European Center for Algorithmic Transparency (ECAT) was officially launched by the Commission’s Joint Research Centre (JRC) in Seville, Spain. e role of the ECAT will be to provide the Commission with in-house technical and scientic expertise to ensure that algorithmic systems used by the ‘Very Large Online Platforms’ and ‘Very Large Online Search Engines’ comply with the risk management, mitigation, and transparency requirements of the Digital Services

Act(DSA)

Court of Justice streaming hearing in case concerning the clarication of the QualicationDirective

Tuesday 18 April

e Court of Justice’s hearing in K, L v Staatssecretaris van Justitie en Veiligheid (C-646/21), concerning the clarication of the Qualication Directive and, specically, its interaction withsituationsinwhichthethird-countrynationalseekinginternational protection relies on the adoption of ‘western norms, values, and actual conduct’ adopted during their stay in the Member State concerned, is available on the Court’s website

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e Court of Justice ruled in Ain (C-1/23 PPU) that EU law precludes national legislation that requires, without exception, an application for family reunication to be submied in person at a competent diplomatic post. However, the legislation may provide for the possibility of requiring applicants to appearinpersonatalaterstageoftheapplicationprocess

WTO panel rules in favor of the EU regarding India’s tariffs on information andcommunicationtechnology

Tuesday 18 April

eWTOruledinfavoroftheEUinacasechallengingIndia’s tariffs on key information and communication technology (ICT)products

EDPB adopts nal versions of Guidelines on data subjects’ right of access, for identifying a controller or processor’s lead supervisory authority, and data breachnotication

Tuesday 18 April

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e European Data Protection Board (EDPB) adopted nal versions of the Guidelines on data subject rights – Right of access,Guidelinesforidentifyingacontrollerorprocessor ’ slead supervisory authority, and Guidelines on data breach notication.

Court of Justice: executing judicial authorities of a European arrest warrant musttemporarilyrefusesurrender,incaseofseriousdamagetohealth

Tuesday 18 April

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e Court of Justice ruled, in E.D.L (C-699/21), that when requested to surrender a person, in the context of a European arrest warrant, as prescribed by Framework Decision 2002/584/JHA, the executing court must temporarily refuse to execute such a warrant, if there are proven grounds for believing that the surrender would signicantly deteriorate the health, and signicantly reduce the life expectancy, of the person.

Commission’s proposal for reforming the bank crisis management and deposit insurance framework in the Banking Union

Wednesday 19 April

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e European Commission proposed to strengthen the EU’s bankcrisismanagementanddepositinsuranceframework,focusingonmedium-sizedandsmallerbanks

GeneralCourtrulesonexpatriationallowance for EU officials during COVID19part-timework

Wednesday 19 April

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e General Court delivered its judgment in PP and Others v Parliament(CaseT-39/21).AcaseconcerningEuropeanParliament officials who were granted permission to work parttimeduringtheCOVID-19pandemic.

Political agreement reached between the Council and the European ParliamentontheChipsAct

Wednesday 19 April

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e Council and the European Parliament reached a provisional political agreement on the Chips Act, aimed at strengtheningEurope’ssemiconductorecosystem.

AprilInfringementsPackagepublished

Wednesday 19 April

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e European Commission published its regular package of decisions on infringements for the month of April. With the infringement decisions, the Commission pursues legal action against Member States for failing to comply with their obligationsunderEUlaw

Court of Justice claries the conditions for a creditor to obtain a European AccountPreservationOrder

ursday 20 April

e Court of Justice delivered its judgment Starkinvest (C-291/21) e case relates to whether the conditions to obtain a European Account Preservation Order (to preserve sums for debt recovery purposes under Regulation 655/2014) are fullled by a creditor in a cross-border civil ca-

Criteria for electronic communications service provider to appeal regulatory authority’s decision claried by Court ofJustice

ursday 20 April

e Court of Justice delivered its judgment in DIGI Communications (C-329/21), clarifying the conditions under which an undertaking providing electronic communications services (in this case DIGI) may be regarded as an ‘affected undertaking’ and can enjoy a right of appeal against national regulatoryauthoritiesdecisions.

CourtofJusticeannulsCommissiondecision granting authorisation to use chromiumtrioxide

ursday 20 April

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e Court of Justice delivered its judgment in Parliament v Commission (Autorisation d’une substance extrêmement préoccupante) (C-144/21), concerning the conditions under which the European Commission may grant an authorisation forasubstanceofveryhighconcern.

ursday 20 April

In Repsol Comercial de Productos Petrolíferos, (C-25/21), the Court of Justice ruled that Article 101, read in conjunction with Article 2 of Regulation 1/2003 and the principle of effectiveness, must be deemed as establishing an infringement of competition law, by shiing the burden of proof from the applicant to the defendant, where such an infringement, found in a decision of a national competition authority, and subject to an action for annulment before the competent national courts, has become nal aer being conrmed by those courts, in so far as the material, temporal and territorial scopeoftheallegedandestablishedinfringementcoincide.

Court of Justice: the principle of effectiveness of Union law shis the burden of proof in alleged infringements of Article101(1)TFEU

Public authorities may access data stored on mobile phones for common crimes investigations: AG Campos Sánchez-Bordona

ursday 20 April

AG Campos Sánchez-Bordona delivered his Opinion in a case stemming from a dispute over the seizure of a mobile telephone:C.G.vBezirkshauptmannschaLandeck(C-548/21).

Commission further cuts red tape for mergingbusinesses

ursday 20 April

eEuropeanCommissionadoptedapackagetofurthersimplify its procedures for reviewing concentrations under the EU Merger Regulation e package includes: (i) a revised Merger Implementing Regulation, (ii) a Notice on Simplied Procedure, and (iii) a Communication on the transmission of documents.

ursday 20 April

e Court of Justice rendered its judgment in Council v ElQadda (C-413/21), concerning an appeal lodged by the Council against a General Court’s judgment annulling four Council Implementing Decisions imposing restrictive measuresagainstMsEl-Qadda.

ursday 20 April

In EEW Energy om Waste Großräschen GmbH, (C-580/21), in response to a preliminary ruling request by the Federal High Court of Justice (Germany), the Court of Justice rendered its decision regarding the meaning and scope of application of Union rules governing the generation of electricity fromrenewableenergysources

AG Richard de la Tour: woman at risk of domestic violence may be granted refugee statusonthebasisofhermembershipofa‘particularsocialgroup’

ursday 20 April

Advocate General (AG) Richard de la Tour delivered hisOpinion in IntervyuirashtorgannaDABpriMS(Womenvictimsofdomesticviolence)(C-621/21),clarifyingunderwhichconditionsthird-countrynationalsmaybeeligibleforinternationalprotection.

Court of Justice: priority access to electricity grid to be granted to energy producers relying on both renewable and conventionalenergysources

Court of Justice dismisses in its entirety Council’s appeal against General Court’s judgment concerning sanctionsagainstMsEl-Qadda

EU agrees on visa-free regime for Kosovocitizens

Friday 21 April

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e European Parliament and the Council reached an agreement on establishing a visa-free regime for all Kosovo passportholders

AG Koko’s Opinion on Dublin III and EurodacRegulations

Friday 21 April

AG Koko’s Opinion was published on Joined cases Ministero dell’Interno (Brochure commune – Refoulement indirect) (C-228/21, C-254/21, C-297/21, C-315/21, C-328/21) concerning ve preliminary ruling requests submied by differentItalianCourts:laCortesupremadicassazione(SupremeCourtofAppeal,Italy), TribunalediRoma,TribunalediFirenze (Florence), Tribunale di Milano (Milan) and the TribunalediTrieste,seekingclaricationontheDublinIIIandEurodacRegulations.

AG Koko’s Opinion in cases concerning Regulation on Registration, Evaluation, Authorisation and Restriction ofChemicals

Friday 21 April

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AG Koko delivered her Opinion in the cases Global Silicones Council and Others v European Commission (C-558/21 P) and Global Silicones Council and Others v European Chemicals Agency (ECHA) (C-559/21 P) concerning the Regulation 1907/2006 – Registration, Evaluation, Authorisation and RestrictionofChemicals(REACH).

AG Medina’s Opinion in case regarding EU law provisions on the marketing and labeling of parallelly imported plantprotectionproducts

Friday 21 April

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AG Medina delivered her opinion in Syngenta Agro (C-830/21)regardingapreliminaryrulingrequestseekinginterpretation of certain provisions of Regulation 1107/2009 on the marketing of plant protection products and Commission Regulation 547/2011 on labeling requirements for such products

Vice-President of the Court of Justice orders to reduce the amount of the daily ne imposedonPolandto€500,000:CommissionvPoland(C-204/21)

Friday 21 April

e Vice President of the Court of Justice ordered the reduction of the amount of the daily ne imposed on Poland from the original€1m,imposedbytheCourtofJustice,to€500,000,inCommissionvPoland(C-204/21R-P).

Insights, Analyses & Op-Eds

TFEU proceedings and their implications for environmental law breaches

by Stergios Aidinlis

Op-Ed on OpenAI, the company that created ChatGPT, has come under investigation by the Italian data protection authority (DPA) for suspected breaches of the GDPR. e DPA temporarily blocked ChatGPT data collection in Italy, claiming that OpenAI collects personal data from users without a lawful basis and without ensuring the processing of accurate data. e decision raises an important question as to whether OpenAI can rely on legitimate interests to process personal dataforthepurposesofdevelopingandimprovingChatGPT.

by Justine Richelle and Mariolina Eliantonio

Op-Ed on the implication of the requirements of clarity and prima facie, within the meaning of the Commission proceedings, as prescribed by Article 260(2) TFEU, on breaches of environmental law. e ruling in Commission v. Republic of Bulgaria (C-174/21) raises important issues which are relevant both from the perspective of the use of the infringement proceedings as a tool to repair systemic breaches of EU (environmental) law and from that of the current challenges faced by Member States in the implementation of EU air quality legislation.

e European

by Christina M. Marioini

Certicate of Succession and national property law: A tale of boundaries and disjunctures (C354/21,Registrųcentras) READ

Op-Ed on the interplay between the European Certicate of Succession, as prescribed by the Succession Regulation, and the national law of the Member States. Such an interplay is illustrated by Registrų centras (C-354/21), which focuses on the requirements pertaining to the ECS and raises the question of the dividing line between the regime enacted under the Succession Regulation and the regime enacted under national law governing the recording of property rights in a register.

e executive strikes back: On the validity and scope of governmental exceptions to ne bis in idem in MR (GeneralstaatsanwaltschaBamberg,C-365/21) READ

by Francesco Rossi

Op-Ed on the scope and validity of governmental limitations imposed on the prohibition of the double jeopardy principle. Generalstaatsanwaltscha Bamberg (C-365/21) showcases the proportionality of Article 55(1)(b) CISA, which aims at protecting, national security or other equally essential interests, Vis-à-vis Article 54 of the Convention implementing the Schengen Agreement (CISA) and Article 50 of the Charter.

‘Trustworthy and benecial for humanity’: legitimate interests and the processing of personal data by OpenAI’s ChatGPT

e requirement of clarity and prima facie evidence in 260(2)

e direct right of action against an insurer. How AR v Others (C-618/21)

by James Marson and Katy Ferris

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Op-Ed on the Court of Justice’s ruling in AR v Others (C-618/21) concerning the application of the Motor Vehicle Insurance Directive (2009/103), and the obligations therein relating to insurance against civil liability in respect of the use of motor vehicles. In this judgment, the Court has claried the scope of the direct right of action of an injured party against the insurer of the driver at fault, for the damage caused by a motor vehicle (a right introduced in the Fourth Motor VehicleInsuranceDirective(2000/26).

ird time lucky? e revised agreement on the EU’s accession to the ECHR

by Tobias Lock

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Op-Ed on the nal, revised agreement on the EU’s accession to the ECHR, following a long break in the aermath of Opinion 2/13 of the Court of Justice e author focuses on persevering issues such as the principle of mutual trust, Protocol No.16oftheConvention,andtheCFSP.

by Magnus Schmauch

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Op-Ed on the judgment of the ECtHR in Georgiou v. Greece (Case 7378/18) concerning the right to a fair trial under Article 6 ECHR and the sometimes exasperating tendency of nationalcourtsoflastinstanceoffailingtoexplainwhytheydecide not to refer cases to the Court of Justice of the EU in Luxembourg. e judgment highlights the interplay between the case law of the ECtHR and its implication in fostering the protectionofEUfundamentalrights

Wherein lies ‘home’ for ‘home-grown’ players? AG Szpunar’s Opinion in Royal AntwerpFootballClub(C-680/21)

by Guillermo Íñiguez

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Op-Ed on EU law’s application the nal, revised agreement on the EU’s accession to the ECHR, following a long break in the aermath of Opinion 2/13 of the Court of Justice. e author focuses on persevering issues such as the principle of mutual trust, Protocol No. 16 of the Convention, and the CFSP

gives the Court of Justice an opportunity toclarifythelaw

No rights to remain silent for supreme courts on Article 267 TFEU (ECtHR Case7378/18Georgiouv.Greece)

What Difference Does It Make? e Revision of the Article 102 TFEU GuidancePaper

by Lewis Reed

Op-Ed on nal, revised agreement on the EU’s accession to the ECHR, following a long break in the aermath of Opinion 2/13 of the Court of Justice. e author focuses on persevering issues such as the principle of mutual trust, Protocol No 16oftheConvention,andtheCFSP

by David van Wamel

Op-Ed on the obligation of the Commission, to record the interviews it conducts for the purpose of collecting information relating to the subject maer of an investigation, irrespective of whether the interviews are being conducted before or aer theformalopeningofaninvestigation.

Harley-DavidsonEuropeLtd

by Marja Hokkanen

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by Claudia Cantone

AnalysisoftheCourtofJustice’sjudgmentinLUandPHv.Minister for Justice and Equality (C-514/21 and C-515/21), interpreting the notion of ‘trial resulting in the decision’, as contained in Article 4a (1) of the Framework Decision on the European arrest warrant e judgment claries whether the executing court is compelled to refuse the surrender of the requested person or to make the surrender subject to the condition that that person will be entitled, in the issuing State, to a retrial or to an appeal, where it is apparent that the concerned person ’ s rights under Articles 47 and Article 48 of the Charter wereinfringed.

Analysis of the Court of Justice’s judgment in PV v Commission (C-640/20 P), considering the applicability of Belgian criminal law in relation to the autonomous management by the Union of its own civil service. e judgment assesses the impact of national criminal law on a Union’s institutions’ Staff regulations

Transfer of production to another countrybasedonUnionmeasures:Economically justied or circumvention of EU customs legislation? (T-324/21

)

Refusal of an EAW on the optional ground under Article 4a of the EAW Framework Decision: some clarication from the Court of Justice (LU and PH v. Minister for Justice and Equality, C-514/21andC-515/21)

No more ‘off the record’: Commission obliged to also record interviews conducted before formal opening of investigation

Access to documents versus access to les in the context of ECB supervisory procedures(T-72/20SatabankvECB)

by Pier Mario Lupinu

Analysis of the Court of Justice’s judgment in PV v Commission(C-640/20P),consideringtheapplicabilityofBelgiancriminal law in relation to the autonomous management by the Union of its own civil service. e judgment assesses the impact of national criminal law on a Union’s institutions’ Staff regulations

Judgment of the Court of Justice in PV v Commission (C-640/20 P): e impact of national law on the principleofasingleEuropeancivilservice

by María Casado García-Hirschfeld

Analysis of the Court of Justice’s judgment in PV v Commission (C-640/20 P), considering the applicability of Belgian criminal law in relation to the autonomous management by the Union of its own civil service e judgment assesses the impact of national criminal law on a Union’s institutions’ Staff regulations.

Library - Book Review omas Beukers

Tomi Tuominen

e Euro Crisis and Constitutional Pluralism.

Financial

Stability but

Constitutional

Inequality

e book by Tuominen examines the relationship between constitutional pluralism and the setup of the European Monetary Union (EMU) Tuominen argues that the current EMU's asymmetrical structure is unsustainable, and he suggests that the Court of Justice needs to have a clear delineation of roles with national courts to address this. According to the reviewer, Tuominen's book provides ample illustrations of national courts and their rolesintheeurocrisis

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