Weekend Edition Nº142

Jack of All Trades is a Master of None: European Media Freedom Act Proposal

In September 2022, the Commission proposed a dra European Media Freedom Act (EMFA) (2) based on Article 114 of the Treaty on the Functioning of the European Union (TFEU). Surprisingly, it did not stir as much interest as the widely discussed Digital Services Act (3) nor the Digital Market Act (4), as it seems to have fallen under the radar because of those two acts. In this short contribution, we will show that, despite having a noble cause, the proposed EMFA is an instrument that will not advance the protection of freedom of expression but could create an additional and unnecessary burden on companies. We will also arguethattheCommissionshouldusetheinstrumentsitalreadyhasatitsdisposal,i.e.,theAudiovisualMediaandServices Directive (AVMSD) (5) and the EU Merger Regulation (6), more actively instead. Due to the limited scope of the contribution, we will focus on the example of the obligations of Member States to ensure the assessment of media market concentration cases that may have a signicant impact on media pluralism and editorial independence. We will not discuss whether Article 114 TFEU is a proper legalbasisforthislegislativepieceorthequestionaboutstateadvertising(7),asthoseissuesmeritseparateanalyses

1.Dr.OlgaBaturaspecialisesintheregulation ofelectroniccommunicationsandteachesattheLeuphanaUniversityandDukeKunshanUniversity. Dr MalgorzataKozakisAssistantProfessorofEuropeanLawatUtrechtUniversitySchoolofLawandCentreforSharedRegulation andEnforcementinEurope –RENFORCE.

2. European Commission, Proposal for aRegulation of the European Parliamentand the Council establishing a common framework for media services in the internalmarketandamendingDirective2010/13/EU,COM(2022)457nal, 16.09.2022.

3. of the European Parliamentand of the Council of 19 October2022 on a Single Market For Digital Services and amending Direc- Regulation (EU) 2022/2065 tive2000/31/EC,OJL277,27.10.2022.

4. of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and Regulation (EU) 2022/1925 amendingDirectives(EU)2019/1937and(EU)2020/1828,OJL265,12.10.2022.

5. of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regula- Directive 2010/13/EU tion or administrative action in Member States concerning the provision of audiovisual media services (Codied version) OJ L 95, 15.4.2010, p 1–24. Consolidatedversionof18.12.2018,L303/69.

6. of20January2004onthecontrolofconcentrationsbetweenundertakings,OJL24,29.1.2004. CouncilRegulation (EC)No139/2004

7.MałgorzataKozak,‘emediapluralismprinciple,FinancingofpublicbroadcastersandEUlaw’Forthcoming.

Olga Batura, Małgorzata Kozak 1

Despite having a noble cause, the proposed EMFA is an instrument that will not advance the protection of freedom of expression but could create an additional and unnecessary burden on companies

BackgroundoftheEMFA

e EMFA aims to address the gradual erosion of media independence. It is supported by ndings from the Commission's annual Rule of Law reports and the Media Pluralism Monitor, which indicate that certain EU Member States have experienced a surge in media interference. e 2022 Media Pluralism Monitor (8) reveals a decline in the EU media landscape, particularly in terms of market plurality, as economic challenges facing media increase, and political independence, with editorial autonomy needing more adequate safeguards (9). e EMFAacknowledgestheroleofinformationasapublicgood,recognisingthatmediacompaniescannotbetreatedlikeanyotherbusinessesandthattheirindependencemustbeprotectedattheEUlevel.

EMFAObjectivesandScope

eEMFAaimstoachievemanyobjectives:

• fostering cross-border activity and investment in media services by harmonising some aspects of the divergingnationalmediapluralismframeworksinparticular,

• facilitating cross-border service provision through increasing regulatory cooperation and convergence throughcross-bordercoordinationtoolsandEU-levelopinionsandguidelines,

• facilitating the provision of quality media services by mitigating the risk of undue public and private interferenceineditorialfreedom,

• ensuring transparent and fair allocation of economic resources in the internal media market by enhancing transparencyandfairnessinaudiencemeasurementanddistributionofstateadvertising.

9.EuropeanCommission, AccompanyingthedocumentProposalforaRegulation oftheEuropeanParliamentandoftheCouncilesta- ImpactAssessmentReport blishingacommonframeworkformediaservicesintheinternalmarketandamendingDirective2010/13/EU,Part1/3,SWD(2022)286nal, 16.09.2022,p.2.

8. 2022.MediaPluralismMonitor

However, this list of objectives merits the rst criticism, as such a plethora of objectives requires more tailored measures (to be discussedfurtherbelow)

To this end, the EMFA aims to provide standard rules for the proper functioning of the internal market for media services while preserving the quality of media services Chapter II regulates the rights of recipients of media services and the rights of media service providers in the internal market It also sets out safeguards for the independent functioning of public service media and the duties of media service providers in the internal market Chapter III lays down a framework for regulatory cooperation and a wellfunctioning demand for media services e European Board for Media Services (hereaer the ‘Board’) will replace the European Regulators Group for Audiovisual Media Services It is explicitly stated that Chapter II and Chapter III, Section 5 of the proposed Regulationareminimumharmonisationprovisions

LackofDenitionofMediaPluralism

e second critical point is related to the issue that is the core of the EMFA and the ultimate value that it aims to protect:mediapluralism iscomplex,multi-facetedconceptisnotdenedbytheEMFA

Media pluralism encompasses various aspects, such as diversity of ownership, sources of information, and availablecontent.Asaresult, itcanbeanalysedatdifferentlevels,includingamacrolevelconcerningmediaownership, service structures, and entry costs, a mezzo level related to media performance and professional conduct, and a micro level focusing on content. Media pluralism can also refer to internal pluralism, which involves a variety of voices and expressed opinions within a specic media organisation, or external pluralism, which entails a range of media outlets in a broader context (11). In addition, the ongoing digitalisation and platformisation (both of which the EMFA tries to account for) have made the concept of media pluralism even more complex andnuanced.

11. Kari Karppinen,‘ ’ , FordhamUniversity Press,2017; EldaBrogi, ‘ Rethinking media pluralism e media pluralismmonitor: Conceptualizing media pluralism for the online environment’, Profesional de la información 29, 2020;Elda Brogi, Roberta Carlini, Iva Nevadić, Pier Luigi Parcu, and Mario Viola de Azevedo Cunha, ‘ ’ , in Pier Luigi Parcu EU and media policy: conceptualising media pluralism in the era of online platforms: e experience of the Media Pluralism Monitor and Elda Brogi (eds.), ‘Research handbook on EU media law and policy’, Edward Elgar Publishing, 2021, p 17;European Commission, ‘Media pluralism in the Member States of the European Union’ SEC(2007) 32, 16.01.2007, p. 18; Andrea Czepek and Melanie Hellwig,‘Press Freedom and Pluralism in Europe: ConceptsandConditions’,IntellectBooksLtd, 2009,p.47.

e EMFA aims to provide standard rules for the proper functioning of the internal market for media services while preserving the quality of media services

e debated nature of media pluralism is acknowledged only in the Impact Assessment and even then only in a footnote (12). e footnote mentions that the concept has different connotations, ranging from the 'marketplace of ideas’ (13) of economic and political liberalism to a functional denition of the notion of the 'public sphere ' .UndertheEuropeandiscourse,mediapluralismislinkedwithdeliberativedemocracy,whichentailsthatcitizens have access to a wide range of information to participate in the democratic debate effectively However, the footnote denes the concept of media pluralism only for the purpose of the Impact Assessment as encompassingbothinternalandexternalpluralism.Consequently,theImpactAssessmentreferstovariousviewpointsexpressed and issues analysed in the media and various media outlets and their types. It considers that concentrationinthemediamarketorthepotentialforconcentrationinamarketthatismovingtowardoligopolyormonopoly is regarded as the most signicant threat to the democratic debate from this perspective. However, there arenoindicationsthatthedenitionfromtheImpactAssessmentwasconsideredinthelegislativeproposal.

Newproceduretoassessmediamarketconcentrations

elackofaclearconceptofmediapluralismbecomescrucialforthenoticationprocedureforconcentrations of media companies proposed in Articles 21 and 22 EMFA. e EMFA requires Member States to ensure a special assessment of media market concentration cases that may signicantly impact media pluralism and editorialindependence.Suchnationalprovisionsshall:

•betransparent,objective,proportionate,andnon-discriminatory;

• require the parties to a media market concentration that could have a signicant impact on media pluralism and editorial independence to notify that concentration in advance to the relevant national authorities or bodies;

• designate the national regulatory authority (N) or body as responsible for the assessment of the impact of a notiable concentration on media pluralism and editorial independence or ensure the involvement of the Norbodyinsuchassessment;

• set out in advance objective, non-discriminatory and proportionate criteria for notifying media market concentrations that could signicantly impact media pluralism and editorial independence and assessing the impactofmediamarketconcentrationsonmediapluralismandeditorialindependence.

us, media pluralism and editorial independence, the main assessment criteria for the newly proposed procedure, are neither dened nor explained. Moreover, these highly vague provisions are exacerbated by the potentialseriousburdencausedbythemforthemediacompanies.

12. European Commission, Accompanying the document Proposal for a Regulation of the European Parliament and of the Council Impact AssessmentReport establishing a common framework for media servicesin the internal market andamending Directive 2010/13/EU, Part 1/3, SWD(2022) 286 nal, 16.09.2022, footnote22.

13. For the discussion on the concept of marketplace of ideas, see Jan Polanski, ‘e Marketplace of Ideas and EU Competition Law: Can Antitrust Be Used to ProtecttheFreedomofSpeech?’,YSECYearbookofSocio-EconomicConstitutions,Springer,Cham,2022.

Lackofclearconditionstobetakenintoaccountintheassessment

e EMFA explicitly states that the proposed procedure is separate from competition law assessments, including those under merger control legislation, without prejudice to Article 21(4) of the EU Merger Regulation.

We note that the EMFA does not clarify how the proposed procedure will interplay with the merger control. e proposed assessment should take into account the impact of concentration on media pluralism, the guarantees of editorial independence, and determine whether, in the absence of the concentration, the acquiring and acquired entity would remain economically stable and whether there are possible alternatives to ensure the economic stability of the entity. It is unclear what constitutes a signicant impact on media pluralism and how it will be measured (e.g., what indicators may be taken into account). e EMFA empowers the Commission, supported by the Board, to adopt guidelines on the factors to be considered by the Ns when applying the assessment criteriafortheimpactofmediamarketconcentrationsonmediapluralismandeditorialindependence.

In light of the ambiguities of understanding media pluralism as a concept, it is unclear what the benchmark of the Article 21 EMFA procedure is Furthermore, the requirements for the new notication procedure are included in two MFA articles. e generalisation level is manifest when compared with the EU merger control procedure undertheEUMergerRegulationandtheconcomitantacts

Media pluralism and editorial independence, the main assessment criteria for the newly proposed procedure, are neither dened nor explained

Lackoftimelimitsforthenewprocedure

e EMFA does not specify any timing requirements for clearance decisions in the proposed notication procedure (e.g., when exactly the notication must take place, also in relation to the merger notication under competition law; what the time limits are for the authorities to adopt the decision) nor does it provide sufficient detail regarding the process steps involved. ese elements are critical for any merger transaction (14) Of course, if le to the discretion of Member States,thiscouldleadtodivergencies.

Noone-stop-shopandcoordinationmechanisms

e EMFA does not provide a one-stop shop for those notications nor any coordination between national procedures It only includes a consultation procedure between the N and the Board. Before making any decision or expressing an opinion regarding a notiable concentration, which could potentially impact the functioning of the internal market, the N must seek the Board's consultation to assess the effects on media pluralism and editorial independence. e opinion of the Board should be adopted in 14 days and made available to the N and the Commission. If the N does not follow the opinion fully or partially, it is bound to present a reasoned justication within 30 calendar days. e Commission may also adopt its own opinion on the maer. Finally, the EMFA does not indicate how coordination or cooperation with competition law authorities responsible for merger control (including the Commission in this function) should work and whether the assessment under the EMFA has any bearingonthemergercontrolprocedure.

Broadandvaguepersonalscopeofthenewprocedure

is new procedure covers ‘media market concentration’, dened as a concentration under Article 3 of the EU Merger Regulation that involves at least one media service provider. Under the EMFA, a 'media service provider' comprises a natural or legal person whose professional activity is to provide a media service and who has editorial respon-

14. eresa Ehlen, Katharina-Sophia Rieger and Eugene McQuaid,‘ European Media Freedom Act and M&A - Flying under the radar, but could have a material impactonfuture’,Fresheldsblog,10March2023.Transactions

e EMFA does not indicate how coordination or cooperation with competition law authorities responsible for merger control (including the Commission in this function) should work and whether the assessment under the EMFA has any bearing on the merger control procedure

sibility for the choice of the content of the media service and determines how it is organised. Finally, 'media service' means a service as dened by Articles 56 and 57 TFEU, where the principal purpose of the service or a dissociable section thereof consists in providing programmes or press publications to the general public by any means, to inform, entertain or educate, under the editorial responsibility of a media service provider. Recital 7 EMFA explains that 'this denition should exclude user-generated content uploaded to an online platform unless it constitutes a professional activity typically provided for consideration (be it of nancial or other nature)'. Moreover, private correspondence and services of which the provision of audiovisual or audio programmes or press publications is of secondary purpose as well as corporate communication and distribution of informational or promotional materials, are excluded. is denition covers television or radio broadcasts, on-demand audiovisual media services, audio podcasts or press publications. Moreover, providers of video-sharing platforms or very large online platforms may also fall under the denition of a media service provider (Recital 8 EMFA).

ResponsibleNs

Under Article 21(1)(c) EMFA, Member States must designate the N or body responsible for assessing the impact of a notiable concentration on media pluralism and editorial independence or ensure the involvement of the N or body in such assessment. 'National regulatory authority or body' means the authority or body designated by Member States under Article 30 AVMSD Member States should ensure that Ns have adequate nancial, human and technical resources to carry out their tasks under the EMFA. is requirement is now endorsed in the EMFA Moreover, under the AVMSD, Ns should be legally distinct from the government and functionally independent of their respective governments and any other public or private body. e independence requirement was introduced in 2018 in the AVMSD Despite all the circumstances presented in the EMFA Impact Assessment about several Member States, the Commission has not decided to open infringementproceedings.

Despite all the circumstances presented in the EMFA Impact Assessment about several Member States, the Commission has not decided to open infringement proceedings

Alternativeexistinginstruments

e EMFA Impact Assessment mentions many problematic issues, e.g., the creation of the KESMA conglomerate in Hungary (15), that the EMFA aims to address. However, it does not discuss whether aempts have been made to tackle these issues with the existing instruments instead of introducing new measures. As a result, we maintainthattheCommissionhasmanypotenttoolsatitsdisposalthatitcouldemploy.

e issue of N independence is central to regulating the audiovisual media services markets. Only when the N's independence is ensured it makes sense to impose additional important functions on these Ns. We agree with the opinion of the International Press Institute that, based on Article 30 AVMSD, the Commission could have started infringement proceedings against the lack of independence of media regulators that are detrimentaltomediafreedomandpluralism(16).

To protect media pluralism as one of the values enshrined in the EU Charter of Fundamental Rights, such as freedom of expression and information and the common values provided by Article 2 of the Treaty on European Union combined with existing instruments such as AVMSD, the Commission should more actively use infringement proceedings. e recent infringement proceedings against Hungary (17) that aim to reconcile internal market principles with EU common values will provide direction for interpreting the inclusion of media-related issues in the internal market context e Commission has found that Hungarian legislation violates AVMSD rules on audiovisual content standards and cross-border audiovisual media service fee provisions by imposing unwarranted and disproportionate restrictions that discriminate against people based on their sexual orientationandgenderidentity.

Within the merger control procedure, the Commission could assess those aspects of pluralism that overlap with merger control objectives, e g , external media pluralism or macro-level media pluralism, including market structure, distribution channels, barriers to entry, etc. Another option is to include an assessment inspired by the publicvaluetestsoutlinedintheStateAidCommunicationforpublicbroadcasters(18) orincorporatedsomenationalagreementsonpublicbroadcasting(19)

15. For details see European Commission, Accompanying the document Proposal for a Regulation of the European Parliamentand of Impact AssessmentReport the Council establishing a common framework for media services in the internal market and amending Directive 2010/13/EU, Part 1/3, SWD(2022) 286 nal, 16.09.2022,pp 7,15and23.

16.AnnaWójcik,‘

’ ,InternationalPressInstituteNewsroom,20December2022. HowtheEuropeanMediaFreedomActcouldaffectHungaryandPoland

17. Case C-769/22, Action brought on 19 December 2022, European Commission v Hungary; European Commission, ‘Commission refers HUNGARY to the CourtofJusticeoftheEUoverviolation ofLGBTIQrights’,PressRelease,15July2022.

18.

,OJC257,27.10.2009,paras 84-89. Communication fromtheCommissionontheapplication of Stateaidrulestopublicservicebroadcasting

19.§32(4) vom27.12.2021.

MedienstaatsvertraginderFassungdeszweitenStaatsvertragszurÄnderungmedienrechtlicherStaatsverträge

To protect media pluralism as one of the values enshrined in the Charter , such as freedom of expression and information and the common values provided by Article 2 TEU, the Commission should more actively use infringement proceedings

15 to 19 May 2023

General Court to hear an action for annulment brought by RT France against theCouncil

Monday 15 May

An action for annulment, brought by RT France against the Council, whereby RT, in accordance with Article 263 TFEU contested Council Decision 2022/351 concerning restrictive measures in view of Russia’s actions destabilizing the situation in Ukraine and Council Regulation 2022/350 concerning restrictive measures in view of Russia’s actions destabilizing the situation in Ukraine was published in the OJ: case RTFrancev Council(T-169/23).

Court of Justice to rule on negotiated procedure without prior publication forcontractsforservicesofgeneralinterest

Monday 15 May

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A preliminary reference from the Higher Regional Court of DüsseldorfconcerningarequestfortheCourtofJusticetoclarify whether Article 14 TFEU commands a restrictive interpretation of Article 32(2)(c), in that, in cases of extreme urgency, a public service contract for services of general interest may be awarded by competitive procedures with negotiation without prior publication even in the case where the event is foreseeable by the contracting authority and the circumstances invoked to justify extreme urgency are aributable to that contracting authority, was published in the OJ: case Müller Reisen(C-128/23).

Polish action against decision on the offseing of daily penalties, published in

Monday 15 May

Official publication was made of an action for annulment brought by Poland against the Commission concerning a decision relating to the offseing of the amounts receivable by way of the daily penalty payments imposed on Poland by order of the Vice-President of the Court of Justice: case Poland v. Commission(T-156/23).

Commission clears acquisition of Activision Blizzard by Microso, subject to conditions

Tuesday 16 May

e European Commission approved, under the EU Merger Regulation, the proposed acquisition of Activision Blizzard (‘Activision’) by Microso, conditional on full compliance withthecommitmentsofferedbyMicroso

Regulations on Carbon Border Adjustment Mechanism and Social Climate Fund to Drive Climate Neutrality publishedinOJ

Tuesday 16 May

Official publication was made of Regulation (EU) 2023/956 establishing a carbon border adjustment mechanism and Regulation (EU) 2023/955 establishing a Social Climate Fund and amending Regulation (EU) 2021/1060, both as tools to achieve the objective of a climate-neutral Union by 2050 and contributetothegoalsoftheParisAgreement

Official publication of Regulation

2023/957: Inclusion of Maritime Transport in Emissions Trading and MonitoringRequirements

Tuesday 16 May

Official publication was made of Regulation (EU) 2023/957, which amends Regulation (EU) 2015/757, to include maritime transport activities in the EU Emissions Trading System (EU ETS) and establish monitoring, reporting, and verication requirements for additional greenhouse gases and ship types.

Preliminary reference on the criteria for appointing a candidate to the GeneralCourt,publishedinOJ

Tuesday 16 May

A preliminary reference from the Regional Administrative Court of Vilnius was published in the OJ: case Valančius (C-119/23). e case in the main proceedings concerns the proposal from the Lithuanian Government to appoint a Judge of the General Court e referring court is asking the Court of Justice whether the criteria, provided by Articles 254 and 19(2) TEU, require a candidate to be selected exclusivelyonthebasisofprofessionalability.

Tuesday 16 May

In its new special report, the European Court of Auditors (ECA) emphasized the importance of the European Central Bank (ECB) in reinforcing its supervision efforts to ensure that all signicant banks, operating in the EU, properly managetheircreditrisk

ECtHR: Right to freedom of expression was not violated by the applicant’s convictionforfailingtopromptlyremoveunlawfulcommentsonFacebook

Tuesday 16 May

e Grand Chamber of the ECtHR rendered its judgment in thecaseofSanchezv.France(applicationno.45581/15),where it held, by a majority, that there was no violation of Article 10(freedomofexpression)oftheECHR,concerningtheposting of derogatory and racist comments on the applicant’s Facebookpage,targetingapoliticalopponentandhispartner

Court of Justice’s hearing today: Preliminary reference on the collection of data relating to the civil identity of userscorrespondingtoanIPaddress

Tuesday 16 May

e Court of Justice’s hearing in case La Quadrature du Net e.a. (C-470/21) concerning a preliminary ruling request seeking clarication on the collection of data relating to the civil identity of users, corresponding to an IP address, by an administrativeauthority,canbefoundontheCourt’swebsite.

European Court of Auditors: ECB needs to increase assurance that banks’ creditriskisproperlymanaged

Council reaches Agreement on amendments to Directive for Taxation Administrative Cooperation, prioritizing reporting and information exchange regardingcrypto-assets

Tuesday 16 May

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eCouncilagreedonamendmentstothedirectiveonadministrative cooperation in taxation, focusing on reporting and exchanging information on crypto-assets and wealthy individuals’taxrulings.

Regulation 2023/969 enhancing Cross-Border Cooperation through JIT Collaboration Platform published inOJ

Wednesday 17 May

Official publication was made of Regulation (EU) 2023/969 which establishes a collaboration platform to support joint investigation teams ( JITs) and amends Regulation (EU) 2018/1726, aiming at enhancing cooperation and coordination between national and international law enforcement and judicialauthoritiestocombatcross-bordercrime,includingorganizedcrimeandterrorism.

Wednesday 17 May

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e General Court dismissed the action brought by the German electricity producer EVH against the European Commission’s approval of the acquisition of E ON’s generation assets by RWE: EVH v Commission (T-312/20) Moreover, the General Court ruled that the action brought by German municipal authority enercity against the approval of the same acquisitionisinadmissible:enercityvCommission(T-321/20).

Wednesday 17 May

Official publication was made of Directive (EU) 2023/970, laying down minimum requirements to strengthen the applicationoftheprincipleofequalpaybetweenmenandwomen.

Court of Justice rules on rights of eco-

Wednesday 17 May

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e Court of Justice concluded that a national court, which has made a request for a preliminary ruling to the Court, is not prevented from continuing the main proceedings in part: case BK and ZhP (Suspension partielle de la procédure au principal)(C-176/22).

nomic

operators

in

PEX proceedings

Wednesday 17 May

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e Court of Justice delivered its judgment in Funke (C-626/21), which follows a preliminary reference from the Supreme Administrative Court in Austria, concerning the procedural rights of parties within the EU’s Rapid Exchange ofInformationSystem(PEX)

Directive 2023/970 on the strengthening of the principle of equal pay, publishedintheOJ

General Court declares inadmissible the action brought by enercity and dismisses the action brought by the German electricity producer EVH against the approval of RWE’s Acquisition of E.ONAssets

Continuation of main proceedings partially allowed despite preliminary rulingrequesttoCourtofJustice

AG Koko delivers Opinion on right of access to environmental information, scopeofresjudicata

Wednesday 17 May

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Advocate General Koko delivered her Opinion in case Right to Know (C-84/22), a preliminary reference from the High Court in Ireland concerning the right of access to environmental information under the Aahrus Convention and the Environmental Information Directive (Directive 2004/4/EC) (the Directive), seeking to clarify whether the records of government cabinet discussions come either under the exception for internal communications or under the

AG de la Tour delivers Opinion in

the interpretation of a ‘particularly serious crime’ in connection to aninternationalprotectionapplication

Wednesday 17 May

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Advocate General de la Tour delivered his Opinion in StaatssecretarisvanJustitieenVeiligheid(Netherlands;C-402/22)regarding a preliminary ruling request from the Raad van State seeking clarication of the scope and relevant criteria for dening the notion of ‘particularly serious crime’, as prescribed by Article 14(4)(b) of Directive 2011/95 on standards for the qualication of third-country nationals or stateless personsasbeneciariesofinternationalprotection.

Commission adopts dra MoU with the UK on the regulation of nancial services

Wednesday 17 May

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e Commission adopted a dra Memorandum of Understanding (MoU) aiming at creating an administrative framework for voluntary regulatory cooperation in nancial servicesbetweentheEUandtheUK.

Commission proposes the most ambitious and comprehensive reform of the EU Customs Union since its establishmentin1968

Wednesday 17 May

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e Commission proposed an ambitious and comprehensive reform of the EU Customs Union, aiming to simplify, digitize, andenhancethesafetyofcustomsprocesses

Appeal against judgment of the General Court in Jenkinson v. Council should be dismissed: AG Richard de la Tour

Wednesday 17 May

Advocate General Richard de la Tour delivered his Opinion in Jenkinson v Council and Others (C-46/22 P), an appeal against a General Court’s decision concerning a long-lasting dispute on the employment conditions of Mr. Jenkinson, an IrishcitizenemployedinseveraloftheEU’sinternationalmissions.

Council of Europe Reykjavik Summit Conclusions: Register of Damage, Democracy Principles, and Human Rights Protection

ursday 18 May

During the Council of Europe Summit in Reykjavik, the HeadsofStateandGovernmentoftheorganization’s46member states agreed, among others, to establish a Register of damage caused by Russian aggression as a rst step towards an internationalcompensationmechanism.

case regarding

Commission sends Korean Air Statement of Objections over proposed acquisitionofAsiana

ursday 18 May

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e European Commission informed Korean Air of its preliminary view that its proposed acquisition of Asiana may restrict competition in the markets for passenger and cargo air transport services between the European Economic Area (‘EEA’)andSouthKorea.

EU-US Health Task Force Launched to Strengthen Partnership and Address GlobalHealthChallenges

ursday 18 May

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e Commissioner for Health and Food Safety, Stella Kyriakides, and US Department of Health and Human Services (HHS) Secretary, Xavier Becerra, announced the launch of the EU-US Health Task Force aiming at enhancing the partnership between the EU and the United States in the eld of health.

Ombudsman: no maladministration by Court of Justice for requiring French in itsrecruitmentprocedures

Friday 19 May

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e European Ombudsman issued a decision stating that the Court of Justice did not commit maladministration by requiring a ‘good knowledge of French’ in its requirement procedures(case1940/2022/EIS).

CommissionclearsacquisitionofOMV Slovenija by MOL, subject to conditions

ursday 18 May

e European Commission approved, under the EU Merger Regulation, the proposed acquisition of OMV Slovenija by MOL, conditional on the divesture of 39 fuel stations in SloveniatotheShellGroup

EDPB

adopts nal version of Guideli-

nes on facial recognition technology in lawenforcement

ursday 18 May

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Following public consultation, the European Data Protection Board (EDPB) adopted the nal version of its Guidelines on facialrecognitiontechnologyintheareaoflawenforcement.

Commission updates the list of highriskthird-countryjurisdictionswithdeciencies in their anti-money laundering/countering the nancing of terrorismregimes

Friday 19 May

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e European Commission made updates to the list of highrisk third-country jurisdictions with deciencies in their antimoney laundering/countering the nancing of terrorism (AML/CFT)regimes

Commission issues rst Media IndustryOutlookreport

Friday 19 May

e European Commission released its inaugural European Media Industry Outlook, which examines audiovisual, video game,andnewsmediatrends

European Medicines Agency issues recommendations to address shortages ofmedicines

Friday 19 May

e European Medicines Agency (EMA) released recommendations for the industry on good practices to ensure continuity in the supply of human medicines, prevent shortages, andminimizetheirimpact.

Insights, Analyses & Op-Eds

Are the nes ne? A tale of disharmony andopacityofGDPRenforcement

by Naomi Lintvedt

Op-Ed,partoftheEULawLiveSymposiumonthe5thAnniversaryoftheGDPR,ontheeffectivenessofnesinensuringcompliance with the GDPR, and ultimately guaranteeing the protectionofthefundamentalrighttodataprotection.

by Barbora Budinská

Op-Ed on the judgment in Beobank (C-351/21), where the Court of Justice held that a payment service provider has an obligation of result under the rst Payment Services Directive (2007/64/EC, ‘PSD’) to provide a payer with information thatwouldenabletheidenticationofthepersonwhobenetedfromatransactiondebitedfromthatpayer ’ saccount.

Payment service providers must be able to identify the beneciary of a payment transaction debited from a paymentserviceuser ’ saccount(C-351/21, Beobank)

Good condition of euro banknotes: cash handlers’ nose in but hands out –Brink’s Lithuania (C-772/21) preliminaryruling

by Christy Ann Petit

Op-Ed on the Court of Justice’s preliminary ruling in Brink’s Lithuania (C-772/21), concerning the interpretation of Article 6(2) of the Decision of the European Central Bank (ECB) ECB/2010/14, laying down common rules and procedures ontheauthenticityandtnesscheckingofeurobanknotesunderArticle6(1)ofRegulationNo1338/2001.

C-40/21 Agenția Națională de Integritate:AnotherChapterinanOngoingBale Against Corruption in the Member States?

by Anna Zemskova

Op-Ed on the First Chamber of the Court of Justice’s recent judgment in Agenția Națională de Integritate (C-40/21), whereby the existing case law on the anti-corruption legal practices and beyond is enriched, rstly, by explicating the scope of particular provisions of the Charter and, secondly, by illuminating the contours of powers and duties of national courts in situations where the statutory penalties contravene the requirementsofEUlawbybeingdisproportionate

by Marie-Elvire de Moro-Giafferri

Analysis of the Court of Justice’s ruling in TB v Castorama Polska and Knor (C-628/21), whereby the Court claried thestandardofproofrequiredinthecontextofarequestforinformation on the origin and distribution networks of goods or services on the basis of the right of information provided for in Article 8(1) of Directive 2004/48 on the enforcement ofintellectualpropertyrights.

by Mykyta Petik

Expansion of the right to appeal by the ‘affected undertaking’ within the scope of Framework Directive in electronic communications (DIGI Communications,C-329/21) READ MORE ON EU

Analysis of the Court of Justice’s judgment in case DIGI Communications (C-329/21) concerning the interpretation of the notion of ‘affected undertaking’ within the scope of Article 4(1) of Directive 2002/21/EC (‘the Framework Directive’), Article 7 of Directive 2002/20/EC (‘the Authorisation Directive’) and Article 47 of the Charter of Fundamental Rights oftheEuropeanUnion

Clarication of the requirements of the standard of proof required in the context of the right of information provided for in Article 8(1) of Directive 2004/48 (TB v. Castorama Polska and Knor (C-628/21)

by Bilgesu Sumer

Analysis of the Court of Justice’s judgment in case Österreichische Datenschutzbehörde (C-487/21), whereby light is shed on the right to access as stated in Article 15(3) of the GeneralDataProtectionRegulation(GDPR).

by Katrin Blasek

Op-Ed,partoftheEULawLiveSymposiumonthe5thAnniversary of the GDPR, discussing the lack of legal certainty regarding whether there is a ‘right to explanation’, enshrined in the GDPR.

Right to obtain a copy: e data subject should be provided with an intelligible reproduction of complete personal data processed (Österreichische Datenschutzbehörde,C-487/21)

Do data subjects have a right to detailed disclosure of how an automated decision has been made (‘right to explanation’)?

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