Weekend Edition Nº139

The PNB Banka Cases Some Reflections on the Specificity of the Integration Law in the SSM System

Francesco Martucci

I.Introduction

To what extent does the Banking Union mark a deepening of the integration method in the EU? e four judgments in the so-called case PNB Banka give a good illustration of this topic (2) e General Court dismissed the PNB’sactionforannulmentrelatedtofourdecisionsoftheECB.

First of all, it is necessary to recall the facts, which are somewhat complex. PNB Bank is a credit institution governedbyLatvianlawwhichsuppliedawiderangeofbanking,nancialandcapitalmanagementservices Itwasoriginally a less signicant credit institution placed under the direct prudential supervision of the Latvian Regulator(FCMC) CRwastheapplicant’smajorityshareholder InFebruary2016andAugust2017,theFCMCimposedadditionalprovisionsrelatingtoprudentialrequirementsontheapplicant.Atthesametime,PNBBankanotied the FCMC of its intention to directly acquire a qualifying holding in another Latvian credit institution B and to exceed 50% of the capital and voting rights in the laer. On the same day, CR notied the FCMC of his intentiontoacquire,indirectlythroughhisshareholdingintheapplicant,aqualifyingholdinginthetargetbank

On 21 December 2018, the FCMC requested the ECB to take over the direct prudential supervision of the applicant. On 10 January 2019, the ECB’s Supervisory Board approved the dra decision to conduct an on-site inspection at the applicant’s premises. As the Governing Council of the ECB raised no objection, the dra decision was deemed adopted on 21 January 2019 which had been contested by PNB Banka before the General Court (Decision1,CaseT-275/19).Byleerof1March2019,theECBnotiedPNBBankathatithaddecidedtoclassify it as a signicant entity subject to its direct prudential supervision. e applicant lodged an action for annulment against this decision (Decision 2, T-301/19). At the same time, aer the FCMC submied to the ECB a proposal for a decision, the ECB notied on 21 March 2019 to PNB Banka its decision to oppose the acquisition of qualifying holdings. e applicant brought also an action for annulment against this decision (Decision

2. ,PNBBankavECB(T-275/19,EU:T:2022:781); JudgmentoftheGeneralCourtof 7December2022 judgmentof theGeneralCourtof 7December2022,PNBBankavECB(T-301/19,EU:T:2022:774); judgmentof theGeneralCourtof 7December2022,PNBBankavECB(T-330/19,EU:T:2022:775); judgmentof theGeneralCourtof 7December2022,PNBBankavECB(T-230/20,EU:T:2022:782).

1.FrancescoMartucciisProfessorof EuropeanLawatUniversitéParisPanthéon-Assas.

3,T-330/19) Finally,whentheECBconcludedthatPNBwasfailingorlikelytofail,theSingleResolutionBoard had not to adopt a resolution scheme. e FCMC initiated insolvency proceedings. e Riga City Court declared the applicant insolvent pursuant to the Latvian legislation on civil procedure. erefore, on 17 February 2020, on the basis of proposal for a decision submied by the FCMC, the ECB withdrew the applicant’s authorisation in accordance with the Latvian legislation on credit institutions. PNB Banka lodged an action against this decisionoftheECB(Decision 4,T-230/20).

is piecewillfocusonlyontheaspectsofthesecasesthathighlightedthespecicfeaturesoftheSSM.However, in the four cases, the General Court responded to all the pleas submied by the applicant, which focused essentially on the composite character of European Administrative Law. Classically, the applicant argued,for example, from a procedural point of view, the infringement of essential procedural requirements, of the obligation to state

3. of 15 October 2013 conferring specic tasks on the European Central Bank concerning policies relating to the pru- Council Regulation (EU) No 1024/2013 dentialsupervisionofcreditinstitutions(OJ2013L287, p 63).

4. of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Me- Regulation (EU) No 468/2014 chanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (ECB/2014/17),(OJ2014L141,p 1).

5. of the European Parliamentand of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential super- Directive 2013/36/EU visionofcreditinstitutionsandinvestmentrms,(OJ2013L176,p 338).

reasons, of the applicant’s right to be heard and, from a substantial point of view, breach of the principles of the protection of legitimate expectations and legal certainty, equal treatment or proportionality. e General Court dismissed all the pleas as unfounded. Nevertheless, the four cases are of interest in so far they underline the legal specicities of the SSM from three points of view. Within the SSM, the ECB exercises the powers of banking supervision in the framework formed with the national competent authorities (NCA), as the case may be, implementingcomplexadministrativeproceduresandapplyingEULawcombinedwithnationallaw.

II.edecentralisedframeworkofcompetence

PNB Banka conrms the idea that the SSM Regulation has grounded a decentralised supervisory framework: ‘Within the framework of Article 6, the ECB shall, in accordance with paragraph 3 of this Article, be exclusively competent to carry out, for prudential supervisory purposes, the following tasks in relation to all credit institutions established in the participating Member States’. (6) Article 6 of the SSM Regulation has enshrined the SSM framework since it provides that ‘e ECB shall carry out its tasks within a single supervisory mechanism composed of the ECB and national competent authorities’ is specic institutional structure comes out in the PNB Banka cases in so far as the ECB adopted the contested decision in proceedings involving the Latvian regulator. esecasesareagoodexampleofthedivisionoftasksbetweentheECBandtheNCA.

Originally, PNB Banka was supervised by the national regulator which requested the ECB to take over the direct prudential supervision of it. Aer instruction, the ECB decided to classify it as a signicant entity subject to its direct prudential supervision It should be recalled that the ECB is competent to supervise the banks which are signicant entities, in accordance with Article 6(4) of the SSM Regulation. Less signicant credit institutions are supervised by the NCA According to Article 6(4) of the SSM Regulation, the ECB may also, on its own initiative, consider an institution to be of signicant relevance if that is necessary to ensure a consistent application

PNB Banka conrms the idea that the SSM Regulation has grounded a decentralised supervisory framework

6.Article 4oftheSSMRegulation.

of high supervisory standards. In the Landesbank Baden-Würemberg case (7), the Court of Justice held that the ECB has a broad discretion to decide which entities are signicant, in order to safeguard nancial stability in the Union, and to use its supervisory powers in the most effective and proportionate way. e judgment in the case T-301/19 is consistent with the case-law Landesbank Baden-Würemberg. When the General Court engaged in the assessment of the legality decision to classify the applicant as a signicant entity, it held that the ECB respected all the requirements of the SSM Regulation and of the SSM Framework Regulation, as well as the general principlesofEUlaw

It should be noted that the decision to conduct an on-site inspection (case 1) was adopted by the ECB before the classication of PNB Banka as a signicant entity. us, the applicant submied that the ECB was not the competent supervisory authority on the date of the decision to conduct an inspection because it should carry out such inspections only at signicant credit institutions. e General Court dismissed this plea relying on the case-law established in the judgment Landesbank Baden-Würemberg, concluding that ‘It follows from the wording of Article 4(1) of SSM Regulation that the ECB has exclusive competence to carry out the tasks stated in that provision in relation to “all” credit institutions established in the participating Member States, without drawingadistinctionbetweensignicantcreditinstitutionsandlesssignicantinstitutions’(8)

According to Article 6(1) of the SSM Regulation, the ECB is to carry out its tasks within an SSM composed of it and NCAs. erefore, NCAs assist the ECB in carrying out the tasks conferred on it by SSM Regulation, ‘by a decentralised implementation of some of those tasks in relation to less signicant credit institutions’ (9) at results in two consequences. Firstly, the ECB is at any time competent to make use of the investigatory powers referredtoinArticles10to13oftheSSMRegulationagainstthelesssignicantcreditinstitutions,whenitisnecessary to ensure an effective application of supervisory standards Secondly, the fact that NCAs are to carry out, in a decentralised manner and under the supervision of the ECB, certain taskssetoutintheSSMRegulationwithregardtolesssignicant credit institutions has no bearing on ECB’s competence to exerciseitsinvestigatorypowerswithrespecttothoseinstitutions

Hence, Article 6 of the SSM Regulation does not organise the division of powers between the ECB and NCAs. e SSM is a centralised framework in which the supervisory powers belong to the ECB. It becomes decentralised only in so far as the NCA assists the ECB in carrying out the supervisory tasks Articles 4 and 6 of the SSM Regulation must be interpreted in the sense

7. ,LandeskreditbankBaden-WürembergvECB(C-450/17P,EU:C:2019:372). Judgmentof

8.T-275/19,para122;C-450/17P,paras37and38.

9.T-275/19,para122;C-450/17P,para41.

theCourtofJusticeof8May2019

Article 6 of the SSM Regulation does not organise the division of powers between the ECB and NCAs

that the less signicant credit institutions are supervised by the NCAs that act as agents of ECB. Furthermore, the judgment reiterates that the ECB has exclusive competence to carry out the supervisory tasks. In our opinion, the banking supervisory is not an exclusive competence in the sense of Article 3 TFEU Indeed, this provision ‘establishes an exhaustive, and not merely an indicative, list of the areas in which the Union has exclusive competence’ It would be possible to assume, at the most, that the SSM Regulation has a preemption effect as regards supervisory powers Member States and the EU exercise the shared competence of banking supervision within the SSM. While, in principle, ‘decentralised implementation’ implies that the national authorities acting as ordinary authorities applying EU law, within the SSM, the ECB has the monopoly on the supervisorytasksthatitcarriesoutwiththecooperationofNCAs.

III.ecomplexadministrativeprocedure

Complex, composite or combined procedures are an obvious manifestation of the EU integration e EU legal order provides many examples of such procedures which permit a multilevel decisionmaking power in which European institutions and national authorities are involved. However, according to Advocate General Campos Sánchez-Bordona, the use made of composite or combined administrative procedures within the banking union is much more intensive and more frequent than in other areas. (11) ere are two different situations: (i) ‘EU composite administrative procedures where the decision-making power lies with the national authorities (Borelli case-law); (ii) EU composite administrative procedures where the decision-makingpowerlieswiththeEUinstitutions(SwedenvCommission case-law)’. (12) e judgments T-330/19 and T-230/20 relate to the second situation, as was the case in the Berlusconi case, (13) insofarthecontesteddecisionshadbeenadoptedbytheECBinproceduresinvolvingtheLatvianNCA

11.

Judgment of the Court of Justice of 19 December 2018

Opinion of27June2018,EU:C:2018:502,point2.

12.Ibid.,para63.

13.

JudgmentoftheCourtofJusticeof19December2018

, Silvio Berlusconi (C-219/17, EU:C:2018:1023) and Advocate General Campos Sánchez-Bordona’s

,SilvioBerlusconi(C-219/17,EU:C:2018:1023).

It would be possible to assume, at the most, that the SSM Regulation has a preemption effect as regards supervisory powers

On the one hand, Article 15(2) of the SSM Regulation foresees that the acquisitions of qualifying holdings shall be assessed by the NCA that forward the notication and a proposal for a decision to oppose or not to oppose the acquisition, to the ECB us, in the case T-330/19, the FCMC submied to the ECB a proposal for a decision to the effect of an opposition to the proposed acquisition. According to Article 15(3) of the SSM Regulation, the ECB shall decide whether to oppose the acquisition On the other hand, pursuant to Article 14(5) of the SSM Regulation, the ECB may withdraw the authorisation to take up the business of a credit institution, following consultations with the NCA of the Member State where the credit institution is established, or on a proposal from such an NCA. In Case T-230/20, the FCMC submied to the ECB a proposal for a decision that the applicant’s authorisation to operate as a credit institution be withdrawn on the basis of the Latvian legislationoncreditinstitutions,inaccordancewithArticle80ofSSMFrameworkRegulation.

In both cases, there is no doubt that the General Court is competent to assess appreciate the legality of the ECB’s decisions, even if those had been adopted with the implication of the FCMC e ECB has exclusive competence to decide whether or not to authorise the acquisition and to withdraw the authorisation to operate, at the end of the procedure laid down, in the SSM Regulation and the SSM Framework Regulation. e proposal of the NCA ‘constitutes an act of a national authority and constitutes a stage of a procedure in which an EU institution exercises, alone, the nal decision-making power without being bound by the preparatory acts or the proposals of the national authorities. In such a situation, it falls to the EU Courts, by virtue of their exclusive jurisdiction to review the legality of EU acts on the basis of Article 263 TFEU, to rule on the legality of the nal decision adopted by the EU institution at issue and to examine, in order to ensure effective judicial protection of the persons concerned, any defects vitiating the preparatory acts or theproposalsofthenationalauthoritiesthatwouldbesuchasto affect the validity of that nal decision’. (14) erefore, only the General Court has jurisdiction to determine whether the ECB’s decisions are affected by any defects rendering unlawful the acts preparatory to those decisions that were adopted by the NCA. e PBN Bank submied pleas contesting the regularity of the procedurelaiddownbytheFCMC.

14.CaseT-230/20,para63,seealsoBerlusconiandFininvest,C-219/17,paras43and44.

e ECB has exclusive competence to decide whether or not to authorise the acquisition and to withdraw the authorisation to operate, at the end of the procedure laid down, in the SSM Regulation and the SSM Framework Regulation

InCaseT-330/19,theGeneralCourtclariedthattheNCA’sroleconsistsinregisteringapplicationsforauthorisation and in assisting the ECB, which alone has the decision-making power, in particular by providing it with all the information necessary for carrying out its tasks, by examining such applications and then by forwarding to the ECB a proposal for a decision, which is not binding on the ECB (para 121) No irregularities were foundedconcerningtheauthorisationprocedure.Inparticular,thefactthattheECBintervenedintheprocedurebeforethatnationalcompetentauthoritysendsaproposalforadecisionisnotunlawful(para122)

In case T-230/20, the applicant had raised several pleas concerning the composite procedure Firstly, the General Court held that the ECB did not infringe the obligation to state reasons under Article 296 TFEU in so far its decision to withdraw the authorisation refers explicitly to the FCMC’s proposal which constituted the starting point of that procedure and explained certain grounds of the contested decision (paras 33-34). However, the ECB’ decision had been adopted on the basis of an assessment independent from those of the FCMC, in the light of all the relevant circumstances, including, but not limited to, the information contained in the FCMC’s proposal to withdraw authorisation (para 107) Secondly, the General Court claried that the NCA may propose the withdrawal of authorisation of all credit institutions (i.e. signicant or less signicant para 54). irdly, the ECB did not infringe its obligation to take a decision on the withdrawal of an authorisation without undue delay within the meaning. e applicant did not specify how the short period of time within which the FCMC submiedaproposaltowithdrawauthorisationtotheECBisliabletoaffectthelawfulnessofthatproposal(para64).Acontrario,thismeansthatatooshortperiodoftimecouldaffectthelawfulnessoftheprocedure.Generally, according to the General Court, ‘in the absence of any other maers of law or fact put forward by the applicant and of any indication whatsoever as to the specic procedural rights of the applicant that the laer claims were infringed by the FCMC, it is not apparent that the manner in which the procedure that gave rise to the proposaltowithdrawauthorisationbytheFCMCwascarriedoutissuchastoaffectthelawfulnessofthecontested decision’(para65).

Case T-230/20 outlined that the procedures laid down by the NCA are integrant part of the lawfulness of the ECB’sdecisionadoptedattheendofacompositeprocedure.

IV.einteractionsbetweenEULawandnationallaw

Last but not least, it is remarkable that the ECB is empowered to apply national law in the exercise of its prudential supervisory tasks, (15) as the PNB Banka cases show. is specicity of the SSM is already reected in the judgment Credit Mutuel Arkea where the Court of Justice appliesFrenchLawinordertoappreciatethenotionof‘supervisedgroup’ within the meaning of Article 10(1) of Regulation No 575/2013. (16) In doing so, it referred explicitly to the case-law of the French Administrative Supreme Court. As put by Daniel Sarmiento, ‘the Court conrmed its willingness to review ECB supervisory acts in light of national law in appeals on points of law, a terrain in which national law has traditionallybeenconsideredtobeafact,notlaw’(17).

In Case T-330/19, the ECB had to apply the Latvian provisions which transposedArticles22and23ofDirective2013/36,i.e.,Articles28and 29 of the Latvian Law on Credit Institutions, as stated in Regulation 192 of the FCMC of 28 November 2017. Firstly, the applicant submied that the assessment period provided for in Article 22(2) of Directive 2013/36 expired before the contested decision was adopted. It argued that ‘the proposed acquisition was deemed to have been approved if the supervisory authority did not oppose it before the expiry of that period, pursuant to Article 22(6) of that directive, and the ECB could not, on the date of the contested decision, have opposed the proposed acquisition’ (para 88) In determining when the period began, the General Court relied on Article 28 of Regulation 192 which provides that the acknowledgment of receipt of the notication of the proposed acquisition is to state, inter alia, that that notication is to be regarded as complete. Indeed, in the case, by leer the FCMC acknowledged receipt of the notication of the proposed acquisition, in accordance with Article 22(2) of Directive 2013/36, as transposed into Latvian law. at leer stated in particular, in accordance with Article 28 of Regulation 192, that the notication is complete. Secondly, the General Court examined whether PNB Banka respected the assessment criteria of the acquisition of the qualifying holding, pursuant to Article 23 of the CRD IV directive which had been transposed into Latvian law by Article 29 of theLatvianLawonCreditInstitutionsandbyRegulation192.Atparagraph148,theGeneralCourtgroundedon

15. On the topic, see MahiasLehmann, ‘Single Supervisory Mechanism Without Regulatory Harmonisation? Introducing a European Banking Act and a “CRR Light” for Smaller Institutions’, EBI Working Paper Series, 2017, no 3, pp 7-8 :Lena Boucon and DanielaJaros, ‘e Application of National Law by the European Central Bank within the EU Banking Union’s Single Supervisory Mechanism: A New Mode of European Integration?’, European Journal of Legal Studies, 2018, pp 179-180.

16.

, Crédit Mutuel Arkéa, Crédit Mutuel Arkéa v European Central Bank, European Commission (C-152/18 P Judgment of the Court of Justice of 2 October 2019 andC-153/18P,ECLI:EU:C:2019:810),AdvocateGeneralOpinion Pitruzella’sof18June2019,ECLI:EU:C:2019:505.

17. Daniel Sarmiento, ‘ ’ , e EU Law live blog, National Law as a Point of Law in Appeals at the Court of Justice e case of Crédit Mutuel Arkéa/ECB 8October2019.

It is remarkable that the ECB is empowered to apply national law in the exercise of its prudential supervisory tasks, as the PNB Banka cases show

the Article 51 of the Regulation 192 to state that the ECB did not infringed Article 23(1) of Directive 2013/36 by opposing the proposed acquisition on the basis of the criterion of the proposed acquirer’s nancial soundness without demonstrating that that acquisition would have a material adverse effect. In addition, it should be noted that both the ECB and the FCMC indicated that they had complied with the Joint Guidelines of the three European Supervisory Authorities (ESA) in accordance with Article 16(3) of Regulation (EU) No 1093/2010 (18) at raises again the question of the normative value of the ESA’s so law, which the Court answeredintheFBFcase.(19)

In Case T-230/20, the ECB shall apply national law, pursuant to Article 14(1) and (2) of SSM Regulation. Any application for an authorisation is to be established in accordance with the requirements set out in the relevant national law. If the applicant complies with all conditions of authorisation set out in the relevant national law, the NCA shall take, within the period provided for by relevant national law, a dra decision to propose to the ECB to grant the authorisation. Conversely, on the basis of the NCA’s proposal, the ECB decides whether the authorisation must be withdrawn in accordance with the relevant national law. Article 18(e) of Directive CRD IVprovidesthatthecompetentauthoritiesmaywithdrawanauthorisationgrantedtothecreditinstitutionconcerned where that credit institution falls within one of the cases where national law provides for withdrawal of authorisation. In this case, Section 27(1)(6) of the Latvian Law on Credit Institutions, which transposes Article 18(e) of Directive 2013/36, provides that the authorisation of a credit institution may be withdrawn if ‘ a court has conrmed the decision, taken in accordance with the procedures provided for in [that] law, to initiate winding-up or insolvency proceedings in relation to the credit institution’. us, in the contested decision, the ECB clearly explained that the procedure for withdrawal of authorisation was initiated following the FCMC’s proposal and based on Section 27(1)(6) of the Latvian Law on Credit Institutions, according to which the authorisation of a credit institution may be withdrawn if a court has decided to open insolvency proceedings againstthatinstitution.

e application by the ECB of the national law should be seen as a consequence of the ‘substantial integration” of banking law promoted by the Single Rule Book Due the CRD IV Directive and the CRR Regulation, Banking law has thus become substantially hybrid. Indeed, it is composed as much of directly applicable provisions of Union regulations as of provisions of national law, some of which transpose directives, others which implement acts of Union law, while the rest is pure national law. While from the institutional point of view, the application of national law by a European institution is astonishing in EU law, it seems logical from the substantive pointofview,havingregardtothenormativeinteractionwithintheSingleRuleBook.

18. oftheEuropeanBankingAuthority(EBA),theEuropeanInsuranceandOccupationalPensionsAuthority(EIOPA)andtheEuropeanSecu- JointGuidelines ritiesandMarketsAuthority(ESMA)ontheprudentialassessmentofacquisitionsandincreasesofqualifyingholdingsinthenancialsector,publishedon20December 2016, JC/GL/2016/01. of the European Parliament and of the Council of 24 November 2010 establishing a European Regulation (EU) No 1093/2010 Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331,p.12).

19. , Fédération bancaire ançaise (FBF)(C-911/19, EU:C:2021:599). See also Judgment of the Court of Justice of 15 July 2021 judgment of the Court of Justice of 25mars2021,BalgarskaNarodnaBanka(C-501/18,EU:C:2021:249).

V.Conclusion

e decentralised exercise of powers, the existence of composite administrative procedures and the application of national law by ECB within the SSM constitute a novelty in EU law and show how the Banking Union means a new mode of European Integration. e SSM thus enables integration to be deepened by reversing it. It is a two-wayintegrationprocessthatworksfromtoptoboombutalsofromboomtotop

e decentralised exercise of powers, the existence of composite administrative procedures and the application of national law by ECB within the SSM constitute a novelty in EU law and show how the Banking Union means a new mode of European Integration

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ursday 27 April

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e Court of Justice delivered its judgment in M.D (Interdictiond’entréeenHongrie) (C-528/21), ruling that Member States cannot prohibit a third-country national who is a family member of a Union citizen, who is a minor, from entering the territory of the Union without having examined the personal andfamilysituationoftheformer.

AG

ursday 27 April

AdvocateGeneral(AG)CollinsdeliveredhisOpinioninAltice Group Lux v Commission (C-746/21), concerning an appeal brought before the Court, on grounds of proportionality and prohibition of double punishment, regarding an action for annulment in relation to a Commission decision imposing a ne for puing into effect a concentration prior to its clearanceandnotication

AG Pitruzzella delivers Opinion on the compatibility of IP law-related criminal sentences with the principles of legality andproportionality

ursday 27 April

AG Pitruzzella delivered his Opinion in G STT (C-655/21), a case concerning criminal proceedings against an alleged breach of intellectual property rights, whereby the referring court seeks clarication from the Court of Justice on the compatibility of national rules with Directive 2004/48 on the enforcementofintellectualpropertyrights,andtheprincipleoflegality and proportionality, as enshrined in Article 49 of the Charter.

ursday 27 April

e Court of Justice rendered its judgment in Castorama Polska and Knor (C-549/21), concerning whether the claimant in an action relating to an infringement of an intellectual property right is obliged to demonstrate that he is the owner of the intellectualpropertyrightconcerned

Appeal against General Court’s judgment on the Commission’s noncontractualliabilityforpreventingrecapitalisationofItalianbankdismissedby theCourtofJustice

ursday 27 April

e Court of Justice delivered his judgment in Fondazione Cassa di Risparmio di Pesaro and Others v Commission (C-549/21), concerning an appeal seeking to declare the European Commission non-contractually liable for having prevented the recapitalisation of Banca delle Marche by the ItalianInterbankDepositProtectionFund.

AG Szpunar: Refusal to grant ID card to Member State national, on domicile grounds, incompatible with EU right to moveandresidefreely

ursday 27 April

AG Szpunar delivered his Opinion in Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date din Ministerul Afacerilor Interne (C-491/21), a case concerning the compatibility ofarefusaltograntanIDcard,whichwouldfacilitatethemovement of the applicant throughout the EU, with provisions of EU law on the freedom to move and reside in the territory of theUnion

Collins: Altice’s appeal against General Court’s judgment on Commission’s ne for ‘ gun jumping’ should be dismissedinitsentirety

under which Member States may refuse entrance of thirdcountry nationals into the EU on grounds of national security claried bytheCourt

Claimant alleging infringement of intellectual property right must demonstrate ownership of said right, Court of Justicerules

Court of Justice dismisses appeal on access to documents in Banco Popular saga

ursday 27 April

e Court of Justice handed down its judgment in Aeris Invest v. ECB (C-782/21 P), which concerned an appeal against the European Central Bank (ECB)’s decision not to grant access to a number of documents concerning the resolution scheme adopted against Banco Popular Español, S A (Banco Popular)

AG Campos Sánchez-Bordona hands downOpinioninDeutscheWohnen

ursday 27 April

Advocate General Campos Sánchez-Bordona handed down his Opinion in Deutsche Wohnen (C-807/21), a preliminary reference concerning the application of the general conditions for imposing administrative nes under Article 83 of the GDPR.

Court of Justice rules on international jurisdictionintrademarklitigation

ursday 27 April

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e Court of Justice handed down its judgment in Lännen MCE (C-104/22), a preliminary reference from the Markkinaoikeus (Market Court, Finland), which concerned the interpretation of Article 125(5) of the EU Trademark Regulation (Regulation 2017/1001) (the Regulation), which addresses the international jurisdiction of national courts under theRegulation.

Data Protection Guide for small businesseskickedoffbytheEDPB

ursday 27 April

eEuropeanDataProtectionBoard(EDPB)launchedaData Protection Guide to help small businesses comply with the GDPR.

CommissionproposesnewharmonizedEUpatentrules

Friday 28 April

e Commission introduced a legislative package for harmonized EU patent rules. e proposed package includes regulations on standard essential patents (SEP), on the compulsory licensing of patents in crisis situations, and on the creation of a unitary supplementaryprotectioncerticate(SPC).

Insights, Analyses & Op-Eds

Something new under the sun? When pharmaceuticals are entitled to fresh regulatory data protection (Joined cases C-438/21P,C-439/21PandC-440/21P)

by Christopher Stothers

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Op-Ed on the protection available for the data provided to regulators, by pharmaceutical companies who invest in clinical trials to prove the safety and efficacy of new pharmaceutical products.

ChatGPT. Time to ink of Accuracy asaLegalRequirement(ForReal)

by Elisabea Biasin

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Op-Ed on the possibility of imposing accuracy as a legal requirement for general-purpose AI technologies, such as ChatGPT, following the standard already in place by the GDPR.

What are ‘ more specic rules’ on the processing of employees’ personal data?:CaseC-34/21Hauptpersonalrat der LehrerinnenundLehrer

by Alberto Miglio

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Op-Ed on the Court of Justice’s ruling in Hauptpersonalrat der Lehrerinnen und Lehrer concerning the interpretation of Article 88 GDPR on data processing in the context of employment, where a national measure provided for the live streamingofclasses,withoutrequiringtheconsentoftheteachers

Leaving the two-step test behind? e Court of Justice expands fundamental rightsprotectionfortheseriouslyillundertheEAWinC-699/21

by Lucia van der Meulen

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Op-Ed on the Court of Justice’s test in E D L concerning the interplay between the principle of mutual trust, the grounds forrefusalprescribedintheFrameworkDecisionontheEuropean Arrest Warrant, and the prohibition of torture and inhumanordegradingtreatmentasenshrinedintheCharter.

e unbearable heaviness of administrativereview:CaseC-46/21PAquind

by Oana Stefan

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Op-Ed on the evolution of the legislative framework and existing institutional infrastructure in relation to a high standard of administrative review from the Boards of Appeal (BoA) of allEUagencies,asestablishedbytheGeneralCourt.

by Joanna Redelbach

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Analysis of the Court of Justice’s ruling in Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System and Commission showcasing the Commission’s possibility, when withdrawing an undertaking, of retroactively collecting the duties with respect to imports that took place at thetimetheundertakingwasstillinforce

eEffectivenessofRighttoFamilyReunication”(Ain,C-1/23PPU)

by Giulia Raimondo

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Analysis of the Court of Justice’s judgment in Ain regarding the compatibility of the legislation of a Member State that requires refugees’familymemberstosubmit,exclusivelyinperson,anapplicationforfamilyreunicationwithEUlaw.

e consequences of the withdrawal of a price undertaking. How far can the Commission go? (C-439/20 P and C-441/20P)

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