Weekend Edition Nº148

‘Mustard after Lunch’? The Polish ‘Muzzle Law’ before the Court of Justice

Taborowski & Paweł Filipek

1.Introduction

e judgment in C-204/21 Commission v. Poland (2) is compelling in its defence of judicial independence and the value of the rule of law as representing the identity of the EU legal order e message is clear: EU law does notallow‘arrangements’likethePolish‘MuzzleLaw’(3) (point2)tolimitnationalcourts’examinationoftherequirements of effective judicial protection under Article 19(1)(2) TEU and Article 47 CFR, especially regarding the nomination process of national judges (point 3). EU law also protects national judges from having to disclose excessive information about themselves (point 4) Nevertheless, the Polish saying, ‘Mustard aer Lunch’, which means doing something ‘too lile, too late’, aptly applies to the Commission’s struggle over the ‘MuzzleLaw’(point5)andperhapsalsototheresolutionofthePolishruleoflawcrisisingeneral(point6)

e Polish saying, ‘Mustard aer Lunch’, which means doing something ‘too lile, too late’, aptly applies to the Commission’s struggle over the ‘Muzzle Law’ and perhaps also to the resolution of the Polish rule of law crisis in general

1. Maciej Taborowski is Professor at the Institute of Law Studies of the Polish Academy of Sciences and former Deputy Ombudsman of the Republic of Poland (2019-2022).Paweł Filipek is Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences Both authors are members of the Good LobbyProfs eywererepresentingtheOmbudsmaninruleoflawcasesbeforetheCourtofJustice,theECtHR andthePolishConstitutionalTribunal.

2. ,Commissionv Poland(Independenceandtheprivatelifeofjudges)(C-204/21,EU:C:2023:442). JudgmentoftheCourtofJusticeof5June2023

3. amending the Law on the organization of the ordinary courts, the Act on the Supreme Court and certain other acts (Journal of Laws Act of 20 December2019 of2020,item190).

Maciej

2.Backgroundofthe‘MuzzleLaw’

e process of decline in the rule of law in Poland began in autumn 2015, when the new government majority proceeded in a systematic way to bring under its control the key elements of the hitherto democratic system based on the 1997 Constitution and to introduce a ‘reform’ of the Polish judiciary (4). at ‘reform’ was aimed mainly at changing the staffing of the judiciary. e process of appointing judges has been changed so that the political authorities can nominate judges without scrutiny, especially to the Polish Supreme Court (opening of a ‘transfer window’) (5). To this end, in the rst place, the Constitutional Tribunal (‘CT’) was taken over, by unlawfully replacing three duly elected judges with three other individuals (6), and then by irregularly appointing the new president of the CT. In this way, those in power, rst, eliminated genuine control of the constitutionality of the laws they were passing; second, employed the seized body to legitimise their own unconstitutional actions; and, third, used it to introduce such changes in legislation that they were not willing or able to push through Parliament on their own. ereaer, the National Council of the Judiciary, which selects judges to be appointed by the President of the Republic, was captured. e government ensured thus their undue discretion in lling judicial positions with persons supported by them, especially in the top level of the judiciary, i.e., to the SupremeCourt(‘SC’) Topreventquestioningsuchnew,irregularappointments,thepoliticalmajorityrstrestricted and then eliminated the judicial review of the nomination procedure to the SC. Presidents of courts throughout Poland have been changed and subordinated to the Minister of Justice (7) However, the verication whether a court (a judge) is properly established and meets the requirements of independence is inherent in the righttoeffectivejudicialprotectionprotectedunderUnionlawandtheECHR.Soon,therefore,therehadtocomeaclashwithbodiesupholdingEuropeanstandards.

e ‘Muzzle law’ came into force on 14 February 2020, indeed, in response to the Luxembourg Court seing independence standards for the nomination process of national judges. Aer the seminal judgment in A.K. and Others, (8) the ‘old’, duly-appointed Polish Supreme Court judges resolved that the ‘new’ SC appointees did not meettherequirementsofeffectivejudicialprotection.On23January2020,thePolishSC’sthreejointchambers passed an unprecedented, historic resolution (‘resolution’) (9), stating that judges who joined the SC from 2018

4. e Court of Justice even used the statement that the reform of the retirement age of serving judges of the Polish Supreme Court was made [..] with the aim of side-liningacertaingroupofjudgesofthatcourt–see

,CommissionvPoland(C-619/18,EU:C:2019:531,para82.JudgmentoftheCourtofJusticeof24June2019

5. As the Polish Supreme Court stated in its preliminary referral to the CJEU in case C-508/19 (Supreme Court order of 15 July 2020, II PO 16/20, para 50), ‘It must therefore be clearly emphasised that in 2018-2019 there was a special “transfer window” in the Polish legal system in which with a agrant and evident violation of the constitutional standard and with full awareness of this by all concerned, appointments to serve in the Supreme Court were handed out [..] What is more, the circumstancesunderwhich theseappointmentstookplace giveriseto justied doubts on the partof the individualshoping to ensurethe rightto a court implementation of this right, since rst the President of the Republic of Poland prepared dra laws allowing for the creation of courts that do not meet the requirements of independence and impartiality, and then on the basis of such provisions - in violation of then, on the basis of such legislation - in breach of constitutional proceduralguaranteesprovidingforpriorjudicialreviewofNCJresolutions-appointedpersonsclosetohimtojudicialpositions’

6.Seeinthiscontext ,XeroFlorwPolscesp zo o v Poland(application no 4907/18). judgmentoftheECtHR of7May2021

7. ,BrodaandBojarav Poland(Applicationsnos and ). JudgmentofECtHR of29June2021 26691/18 27367/18

8. , A K and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C-585/18, C-624/18 Judgment of the Court of Justice of 19 November 2019 andC-625/18,EU:C:2019:982).

9. Resolution of the formation of the combined Civil Chamber, Criminal Chamber, and Labour Law and Social Security Chamber of the Supreme Court of 23 January2020(CaseBSAI-4110-1/20).

were appointed in manifest violation of the Constitution and European standards, which included every member of the Disciplinary Chamber (‘DC’) and the Chamber of Extraordinary Control and Public Affairs (‘CECPA’) e rulings of those ‘new’ judges of the SC were to be regarded as issued in conditions of invalidity fromthemomentoftheresolution,withDCjudgmentsbeingregardedasinvalidevenifissuedpriortotheresolution

In response, the Polish government took steps to shield ‘its’ judicial appointees at all costs e Constitutional Tribunal, then already fully packed with nominees of the ruling majority, declared the resolution of the SupremeCourtinvalid,(10) despitelackingtherequisitecompetencetodoso ItalsoheldtheCourtofJusticecaselaw on judicial appointment process inapplicable in Poland. (11) e function of the ‘Muzzle Law’ was to prohibit national courts from taking ‘actions or omissions that may prevent or signicantly impede the functioning of a judicial body’ and ‘actions that question the existence of a judge’s official relationship, the effectiveness of a judge’s appointment, or the legitimacy of a constitutional organ of the Republic of Poland.’ e ban was further subject to disciplinary and criminal sanctions, and applied to all procedural constellations in which it might have been necessary to review how judges were appointed (e.g., in the context of appeals, provisions on case allocation, or recusal of judges). e CECPA, also packed with ‘new’ judges, gained exclusive jurisdiction to handle issuesofjudges’independencebutwithoutthepossibilitytoappraisejudicialnominationproceduresatall.

Large-scale disciplinary and criminal proceedings were then initiated in the DC against judges when they tried to review the ‘new’ appointments under EU law. at concerned, for example, Judge Agnieszka Niklas-Bibik, (12) who dared to claim in a judicial decision that a common court had been composed of judges nominated in violation of EU law and ECtHR decisions. is moment changed her life. Aer 20 years in office in the Regional Court in Słupsk, the court president, appointed (without any legal criteria) by the Minister of Justice, transferred Judge Niklas-Bibik form the Appeal Division to the Division of First Instance of the Regional Court. All hercasesweretakenawayfromher,accesstotheleshasbeendeniedandshewasrefusedtosetupanE-curiaaccount to make a preliminary reference to the CJEU In addition, judge Niklas-Bibik was suspended from duty for the period of one month. She also faced proceedings leading potentially to disciplinary and criminal sanctions

3.Astrongpleaforjudicialindependence

In the language of EU law, the ‘Muzzle Law’ regulations fully excluded the application of the jurisprudence of the Court of Justice on the procedure for the nomination of judges against the background of effective judicial protection is principle is not only part of the value of the rule of law under Article 2 TEU, but violations of it caninterferewiththeidentityoftheEUlegalorder–astheCourtheldintheConditionalityRegulationCase,(13)

10. (CaseU2/20). JudgmentoftheConstitutionalTribunalof 20April2020

11. (CaseK3/21). JudgmentoftheConstitutionalTribunalof 7October2021

12.Seeindetailhere

13.JudgmentoftheCourtofJusticeof16February2022,Polandv.EuropeanParliamentandCouncil(C-157/21EU:C:2022:98,para145).

and harm the principle of equality of Member States before the Treaties – as pointed to in the RS case (14). Such an exclusion, in particular, if it also prevents preliminary referrals under Article 267 TFEU, undermines the essence of the supranational EU legal order. In its assessment of the Law, the Court of Justice stressed, moreover, that EU provisions of this rank cannot be contrasted with the equivalent provisions of a Member State’s national identity within the meaning of Article 4(2) TEU. is can undoubtedly be seen as a reference to recent case law of the Polish CT, in which it declared the EU treaties to be incompatiblewiththePolishConstitution(15).

In responding to the introduction of the ‘Muzzle Law’, the Commission opened the infringement procedure in April 2020, considering the new Polish legislation as undermining judicial independence and incompatiblewiththeprimacyofEUlaw(16).Whileinitsreply,thePolish Government objected the reasoning and requested discontinuance of the procedure, the Commission continued by adopting its reasonedopinion,(17) andeventuallybringingthecasetotheCourtofJustice a year later. (18) As breaching the Union law, the Commission claimed: rst – prohibiting all national courts from reviewing compliance with the EU requirements of the ‘court’; second – conferring on CECPA the exclusive jurisdiction to examine complaints and questions of law on the lack of the independence of the court or judge; third – permiing the examination of compliance with Union requirements of the ‘court’ to be qualied as ‘disciplinary offence’; forth – entrusting the DC with determination of cases having a direct impact on the status of judges and the performance of their office; and h – requiring judges to provide excessive information with harm to their private life and personal data. e Court’s judgment in the Grand Chamber was delivered more than two years later, on 5 June 2023. It acknowledges allveclaimsoftheCommission.

14. ,RS(C-430/21,EU:C:2022:99,para88). JudgmentoftheCourtofJusticeof22February2022

15.SeejudgmentinthecaseK3/21(fn11)andthejudgmentincaseP7/20(fn25).

16. , Press Release IP/20/772, Brussels, European Commission launches infringement procedure to safeguard the independence of judges in Poland 29April2020.

17. , INF/20/1687, Brussels, European Commission takes next step in infringement procedure to safeguard the independence of judges in Poland 30October2020.

18. , Press Relea- European Commission refers Poland to the European Court of Justice to protect independence of Polish judges and asks for interim measures seIP/21/1524, Brussels,31March2021.

In the language of EU law, the ‘Muzzle Law’ regulations fully excluded the application of the jurisprudence of the Court of Justice on the procedure for the nomination of judges against the background of effective judicial protection

eCourtrightlyconsideredthecircumstancesandcontextfortheadoptionofthe‘MuzzleLaw’.Inparticular,it noted that the Law was introduced in direct response to actions by Polish courts to apply the A K and Others judgment, and pending were preliminary referrals relating to, interalia, the appointment of judges to the CECPA (19), as well as the secondment of judges by the Minister of Justice (20). e Court correctly recognised that nationaljudgeswhoweretoapplytheinterpretationofEUlawfromtheserulings,whichtheCourtfoundtohaveergaomneseffect,wouldbeexposedtosanctions.

e Court also highlighted important issues related to the ‘Muzzle Law’, directly referring to its previous ndings in the case of Disciplinary regime for judges. (21) First, it held that the DC, which does not meet the requirementsofacourtunderEUlaw,notonlycannothandledisciplinarycasesagainstjudges,butalsothatitcannotruleontheirsuspension,salaryreduction,earlyretirement, orlabourandsocialsecuritylawcases.Fortheprospect ofrulingonthesemaersbyabodywhoseindependencehasnotbeenguaranteed,mayinterferewithjudicialindependence. Secondly, the national provision, already evaluated negatively by the Court in the case of Disciplinary regime for judges, which allows disciplinary proceedings against judges for ‘manifest and agrant violation of the law,’ also does not avoid the risk that judges will incur liability for examining in light of EU law the manner in whichnationaljudgeswereappointed.

e Court of Justice dismissed the argument of the Polish government, which was that the reviewed provisions aimed solely at the prohibition of a direct challenge to the validity of a judge’s act of appointment, and thus an inviolableprerogativeofthePresidentoftheRepublic,sinceonlynationallawcandeterminewhoisajudgeasdened by it, and whether it is possible to challenge the validity of a judge’s act of appointment (22) or to remove him or her from office. However, irregularities in the process of appointing a judge can impact judge’s ability to issue rulings under EU law In this regard, the Court was correct in stating that ‘Muzzle Law’ provisions did not precludesanctionsfornationalcourtshouldtheyundertakesuchverication.

19.

,WŻ(C-487/19,EU:C:2021:798). JudgmentoftheCourtofJusticeof6October2021

20.

, Prokuratura Rejonowa w Mińsku Mazowieckim (joined cases C-748-19 to C-754/19, Judgment of the Court of Justice of 16 November 2021 EU:C:2021:931).

21. ,Commissionv Poland(Disciplinaryregimeforjudges)(C-791/19,EU:C:2021:596). JudgmentoftheCourtofJusticeof15July2021

22.See ,ProkuratorGeneralny(C-508/19,EU:C:2022:201) judgmentoftheCourtofJusticeof22March2022

Finally, the Court of Justice rejected the reservation of exclusive jurisdiction over issues of independence of national courts to the CECPA, which was in any event prohibited by the ‘Muzzle Law’ to examine any circumstances related to the appointment of judges. In doing so, the Court considered the provisions of Article 19(1)(2) TEU and Article 47 CFR as constitutional in nature and establishing requirements applicable in all substantive areas of EU law by all national courts. is in turn, taken together with the constitutionally established principle of the primacy of EU law, means that every court must ensure effective judicial protection for individuals and be able to refer preliminary questions to the Court in this regard. us, against any obstacles arising from national laws, the national court may invoke the principle of primacy and cannot wait for another body, such as the CECPA,todoso.

4.Intimidationofjudgesbydemandingexcessiveinformation

e ‘Muzzle Law’ additionally required judges to disclose information on activities in associations and nonprot foundations, as well as – prior to assuming judicial office – political parties is information was then made public on the Internet and thereby universally accessible. National authorities justied such arrangements on the grounds of strengthening guarantees of political neutrality and impartiality of judges. Yet, the Court of Justice shared the Commission’s assessment of their incompatibility with EU law and found that they excessivelyinterferedwiththeprivatelifeofjudgesandviolatedtheprotectionoftheirpersonaldata.Correctly,suchrequirements could have exposed judges’ religious beliefs or ideological convictions, or even stigmatize them and adverselyaffecttheirprofessionalcareer

e arrangements adopted in ’Muzzle Law’ did not meet the proportionality test and could not be deemed necessary in a democratic state ruled by law. e hidden agenda of national authorities was thus other than the one declared; a general review of the out-of-court activities of judges was instead initiated, which targeted the most publicly-active judges who were openly critical of judicial reforms, active in judges’ associations (‘Iustitia’, ‘emis’), and who publicly defended the Constitution, the rule of law and judicial independence. Clearly, the real aim was to exert pressure on judges, reduce their activity, silence their criticism and limit participation in judges’ associations.

5.Somedecienciesinthestruggle

Firstly, the ruling on the ‘Muzzle Law’ was delivered too late. e Commission initiated the case sixteen months aer the act was adopted, and the judgment came aer more than three years Polish authorities instead acted swily against judges who applied EU law, immediately suspending, subjecting to disciplinary proceedings and publicly stigmatising them Surprisingly, this was not helped by the Court’s precedent-seing interim measures of €1 million per day (23), for a total of some €556 million by the time of the nal judgment. ese penalties have been regularly deducted by the Commission from EU payments due to Poland, which is the subject of several of

23. , Commission v. Poland (Independence and the private life of judges) (C-204/21 R, Order of the Vice-President of the Court of 27 October 2021 EU:C:2021:878).

e ruling on the ‘Muzzle Law’ was delivered too late. e Commission initiated the case sixteen months aer the act was adopted, and the judgment came aer more than three years

the Polish government's actions for annulment at the EU General Court (24). ese amounts, however, were not effective enough in deterring the Polish government, which called the packed Constitutional Court to the rescue to exclude the legal effects of interim measures in the Polish legal order (25) It maythusseemsurprisingthattheVice-PresidentoftheCourt reduced the penalty to 0 5 million EUR per day in April 2023 for the partial execution of the Court’s order, (26) which was, however, more a result of negotiating the ‘milestones’ of the Polish Recovery and Resilience plan. (27) With this reduction, the requirement of effet utile of interim measures, which were totally ignored by the Polish authorities and made legally ineffective within the Polish legal order by the ConstitutionalCourt,didnotplayanysignicantrole.

e Supreme Court, as the court of last resort under Article 267(3) of the TFEU, has in all its chambers an increasing number of judges who, according to ECtHR rulings, are not ‘established by law’ under Article 6(1) of the ECHR

Secondly, the Commission denitely blundered in failing to challenge the status and independence of the CECPA judges. As the Court pointed out, the Commission was late in raising this objection, as it did so only in the reply stage of the infringement proceedings before the Court of Justice In this regard, there is also a notable lack of a separate action by the Commission to the Court on the nomination process of ‘new’ judges to the SC, involving the National Council of the Judiciary, which is not sufficiently independent, (28) as was also already conrmed by the Court in Disciplinary regime for judges. For this reason, the Supreme Court, as the court of last resort under Article 267(3) of the TFEU, has in all its chambers an increasing number of judges who, according to ECtHR rulings, are not ‘established by law’ under Article 6(1) of the ECHR. (29) at concerns also the person currently holding thepositionoftheFirstPresidentoftheSupremeCourt

24.Seei.a ,Polandv Commission(T-830/22)or ,Polandv Commission(T-156/23). Action broughton22December2022

25. (CaseP7/20).JudgmentoftheConstitutionalTribunalof14July2021

Action broughton24April2023

26. , Commission v. Poland (Independence and the private life of judges) (C-204/21 R-P, Order of the Vice-President of the Court of 21 April 2021 EU:C:2023:334).

27. See Annex to the Proposal for a Council Implementing Decision on the approval of the assessment of the recovery and resilience plan for Poland, Brussels, 13June2022(InterinstitutionalFile:2022/0181(NLE)).

28.See ,Vilnius,28October2021.ENCJvotestoexpelPolishCouncilfortheJudiciary(KRS)

29. See , Reczkowicz v. Poland (application no. 43447/19); , Dolińska-Ficek judgmentof the ECtHR of 22 July 2021 judgmentof the ECtHR of 8 November 2021 and Ozimek v Poland (applications nos.49868/19 and 57511/19); , Advance Pharma v Poland (application no judgment of the ECtHR of 3 February 2022 1469/20).

irdly, the Court seems to have paid insufficient regard to the Strasbourg Court’s jurisprudence. By the time of the commented judgment, the ECtHR ruling in Dolińska-FicekandOzimek had long since become nal. (30) Here, given Article 52(3) CFR, the standard established in that judgment should in principle also apply to the scope of EU law, which the Court at least ought to have acknowledged. In addition, in several places in the judgment C-204/21Commissionv.Poland,thereisareferencetothejurisprudenceofthePolishConstitutionalCourt.e Court of Justice limits the potential impact of these rulings by referring to the principle of primacy but does not once mention the ECtHR judgment in Xero Flor, (31) which found that panels of the Constitutional Court which included persons unlawfully appointed to the Constitutional Court were not established by law under Article 6(1) ECHR. Aer all, the Commission is conducting infringement proceeding on this exact point, (32) anditwastheCourtitselfthatpreviouslystatedthatarulingofaconstitutionalcourtmaybebindingforothernationalcourtsonlywhenthatconstitutionalcourtisestablishedbylaw,independentandimpartial.(33)

6.eperspectiveofsolvingthePolishruleoflawcrisis

It has become apparent for several years that any positive solutions from the Polish government concerning the rule of law are in principle impossible But if there is big money at stake – not millions but billions, some slight corrections may be possible (like e.g., ‘LBGT-free’ zones). (34) In the context of the judiciary, some government concessions – adopted by the Parliament in January 2023 amendment to the SC Act (35) – follow the Commission’s withholding of funds from the Recovery and Resilience Plan. e Commission now appears inclined to release those funds, at least that is what its Vice President, Vera Jurova, has suggested: ‘is was aprojectthatwasconsultedverythoroughlywiththeEC,andIcanconrmthatweassuredthePolishauthoritiesthatitsadoptionwouldsolve the problem’ (36) However, neither the judgment of the Court of Justice nor the actions of the national authorities so far justify doing so: the mandated milestones have not actually been met and the Polish authorities declare quite openly that they will not complywiththeCourt’sjudgment (37)

30.On8February2022.

31.Seefn6.

32. ,PressReleaseIP/23/842, Brus- EuropeanCommissiondecidestoreferPolandtotheCourtofJusticeforviolationsofEUlawbyitsConstitutionalTribunal sels,15February2023.

33. , SC Euro Box Promotion SRL (joined cases C-357/19, C-379/19, C-547/19, C-811/19 and Judgment of the Court of Justice of 21 December 2021 C-840/19,EU:C:2021:1034).

34.AlanCharlish,‘ ,Reuters,6September2021EUwarnsPolishregionstheycouldlosefundingover“LGBT-free”zones’

35. amendingtheActontheSupremeCourtandcertainotheractsActof13January2023

36.AleksandraBoryń,‘ ’,Gazeta.pl,10June2023. PolskamożeladachwilaotrzymaćgrubemiliardyzUE. VeraJourovaprzedstawiakluczowywarunek

37.SeeNationalProsecutor'sOffice, ;seealsoRuleofLawinPoland,StatementonthejudgmentoftheECJof5June2023 tweetof6June2023

It has become apparent for several years that any positive solutions from the Polish government concerning the rule of law are in principle impossible

While the DC was dismantled, its key jurisdiction over judges has been entrusted to the newly created Chamber ofProfessionalResponsibilityoftheSC,whichlikewisedoesnotmeettherequirementsoftheprincipleofeffective judicial protection. (38) Meanwhile, under the January 2023 legislative amendment, this jurisdiction would be then transferred to the Supreme Administrative Court, which itself stated during the legislative process that such a solution would be unconstitutional. e President of the Republic has preventively referred this amendment to the CT. (39) In order to release the funds, absurdly the Commission now awaits a judgment of a body whose lack of independence is the reason for conducting infringement proceedings by the very same Commission Furthermore, national courts must still not undertake an ex officio review if a judge meets the requirements for effective judicial protection. e general clauses prohibiting challenging the legitimacy of courts and the assessmentofthelawfulnessofjudge’sappointmentremaininforce Meanwhile,thenew‘independencetest’,introduced in June 2022, (40) to verify judge’s aributes is insufficient to enforce EU standards. e test can so far only be initiated upon request of the party to the proceeding and not ex officio by the court Next, the defectively appointed judges are not excluded from consideration of such requests, so they may rule indirectly in causa sua. en, it is not sufficient to establish within the test that the procedure for the appointment of the judge was in breach of the law, it is also required that the negative assessment is backed the judge’s ‘post-appointment’ conduct. In the end, a negative test result additionally depends on proving that the violation of standards by the judgeimpacttheoutcomeoftheverycase

If, under such circumstances, the Commission chooses to unblock the funds, once again the value of the rule of law, which is the essence of the Union’s constitutional identity, will give way to political expediency. at might be also one of the reasons why the biggest European judicial associations litigate against the agreed milestones forastrongdefenceofEuropeanvalueswhenEUmoneyisdistributed.(41)

38.PressReleasebytheRegistryoftheECtHR, ,ECHR 254 Interimmeasuresamendedinthreemorecasesconcerningdisciplinaryproceedingsagainstjudges (2022),17August2022.

39. See to the Constitutional Tribunal to examine the constitutionality of the Act of 13 January 2023 (case Kp Motion of the Presidentof the Republic of Poland 1/23).

40. amendingtheActontheSupremeCourtand certainotheracts(JournalofLawsof2022,item1259). Actof9June2022

41.Seee.g., ,MedelvCouncil(T-530/22). Action broughton28August2022

26 June to 30 June 2023

General Court to hear action for annulment brought by Mylan Ireland against CommissionDecisionconcerningmarketingauthorization

Monday 26 June

Official publication was made of an annulment action brought by Mylan Ireland Ltd against the European Commission, seeking the annulment of Commission Decision emb e d d e d i n i t s l e e r o f 1 7 M a r c h 2 0 2 3 [r e f . SANTE.DDG1.B.5/AL/mmc (2023) 2914698], as well as any later decisions to the extent they perpetuate and/or replace that decision, including any follow-up regulatory actions, in so far as they relate to the applicant: Mylan Ireland v Commission(CaseT-227/23).

Action for annulment against European Data Protection Board’s Decision seeking access to le on binding decision regarding Meta Platforms and Facebook,publishedinOJ

Monday 26 June

Official publication was made of an action seeking the annulment of the decision of the European Data Protection Board (‘the EDPB’) of 7 February 2023 refusing access by the applicant to the le concerning the Binding Decision 3/2022 of the EDPB on the dispute submied by the Irish Supervisory Authority on Meta Platforms Ireland Limited and its Facebook service (Article 65 GDPR) pursuant to Article 41(2)(b) of the Charter: Ballmann v EDPB (Case T-183/23).

Court of Justice to rule on the conditions for direct effect of remuneration obligations under Alternative InvestmentFundManagersDirective

Monday 26 June

Official publication was made of a preliminary ruling request from the Cour de Cassation (France) on the interpretation of Directive No 2011/61/EU on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU)1095/2010:TwentyFirstCapital(CaseC-174/23)

Court of Justice to interpret EU secondary law provisions on copyright protectionofcomputerprograms READ

Monday 26 June

Official publication was made of a preliminary reference from the German Federal Court of Justice (der Bundesgerichtshof),wherebytheCourtofJusticeisaskedtoclarifycertain provisions of Directive 2009/24/EC on the legal protection of computer programs: SonyComputerEntertainmentEurope(C-159/23)

Commission welcomes comments regarding competition concerns in the Spanishonlinerailticketingmarket

Monday 26 June

READ MORE ON EU LAW LIVE

e European Commission invited comments on commitments offered by Renfe to address competition concerns relating to the alleged abuse of its dominant position in the Spanishonlinepassengerrailticketdistributionmarket.

Council Conclusions on strengthening EU Digital Diplomacy in a challenging geopoliticallandscape

Tuesday 27 June

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e Council approved conclusions on EU digital diplomacy, emphasizing the increasing importance of the EU’s leadershipinglobaldigitalgovernance,particularlyinlightofthechallenging geopolitical context, including Russia’s invasion of Ukraine.

EuropeanOmbudsmandecidesonrefusal to grant access to investments made byMEPsvoluntarypensionfund

Tuesday 27 June

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e European Ombudsman rendered its decision on the European Parliament’s refusal to give public access to a document containing the investments made by the voluntary pensionfundfortheMEPs.

Council extends application of restrictive measures to an additional seven individualsinIran

Monday 26 June

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e Council of the EU adopted a ninth package of individual restrictive measures on an additional 7 individuals responsibleforserioushumanrightsviolationsinIran.

Agreement reached by the Council and European Parliament on cybersecurity measures

Tuesday 27 June

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e Council presidency and European Parliament negotiators reached a provisional agreement on a regulation aimed at ensuring a high common level of cybersecurity across EU institutions,bodies,offices,andagencies.

Court of Justice streaming hearing todayincaseregardinganappealonreparations sought for damage suffered from the appellants’ violation of humanrights

Tuesday 27 June

READ MORE ON EU LAW LIVE

e Court of Justice’s hearing in, KS and KD v Council and Commission v KS and Others (Joined cases C-29/22 P; C44/22 P), concerning two cases whereby the Court is sought to conrm the General Court’s jurisdiction to hear and determine the action that the appellants had brought before it, seeking reparation for the damage they have suffered as a result of the violation of their fundamental human rights by the respondents,isavailableontheCourt’swebsite

ECtHR delivers judgment on the detention of Greenpeace activists in Russia

Tuesday 27 June

In Bryan and Others v Russia (application no. 22515/14) the ECtHR held, unanimously, that there had been a violation of the right to liberty and security and the freedom of expression

Council adopts laws to facilitate access to electronic evidence for law enforcement

Tuesday 27 June

e Council adopted a regulation and a directive aimed at improving cross-border access to electronic evidence (eevidence) for criminal investigations, which will enable police and judicial authorities to obtain more easily digital data, including emails, text messages, and traffic data, crucial for investigatingandprosecutingcriminaloffenses.

Basel III Reforms: Provisional Agreement Reached to Strengthen EU BankingSector

Tuesday 27 June

Negotiators from the Council presidency and the European Parliament reached a provisional agreement on implementing the Basel III regulatory reforms in the EU, aiming to enhance the resilience, supervision, and risk management of banksoperatingwithintheEU

Commission issues Statement of Objections regarding merger of Orange and MasMovil, two telecommunication servicesproviders

Tuesday 27 June

e European Commission informed Orange and MasMovil, the second and fourth largest providers of retail mobile and xed internet services in Spain, of its preliminary view that their proposed joint venture may reduce competition in the retail supply of mobile and xed internet services, as well asofmultiple-playbundles

EU Strengthens Worker Protection: NewRulesonAsbestosExposure

Wednesday 28 June

e Council and the European Parliament reached a provisional agreement on enhanced regulations to safeguard workers from the dangers of asbestos exposure, aiming to signicantlyreduceasbestoslimitsandintroducemoreprecisemethods for measuring exposure levels, incorporating technologicaladvancements.

Provisional agreement reached to enhance central securities depositories andcross-borderoperations

Wednesday 28 June

e Council and the European Parliament reached a provisional agreement on updating the rules governing central securities depositories, aiming to reduce nancial and regulatory burdens on CSDs, enhance cross-border operations, and strengthennancialstability

Council and European Parliament reachagreementonproposedDataAct

Wednesday 28 June

e Council and European Parliament reached a provisional agreement on a new regulation, aiming at harmonizing rules onfairaccessto,anduse,ofdata(dataact).

Provisional agreement reached to incentivize the joint procurement of weaponsamongEUmemberstates

Wednesday 28 June

e Council reached yesterday a provisional agreement with the European Parliament on the European defense industry reinforcement through a common procurement act, aiming to incentivize the joint procurement of weapons among EU member states, thereby strengthening the European defense industry.

GeneralCourtrejectsIMG’sactionseeking compensation for unlawful conductbyCommissionandOLAF

Wednesday 28 June

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e General Court rendered its judgment in IMG v Commission (T-752/20) concluding that the document produced by International Management Group (IMG) as Annex A.21 to the application is withdrawn from the le and dismissing the action brought by IMG seeking compensation for material and moral damages allegedly suffered due to the illegal actions of the European Commission and the European AntiFraudOffice(OLAF).

Modernizing Payment Services and EnablingFinancialDataAccessforConsumersandBusinesses

Wednesday 28 June

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e European Commission proposed rules not only to enhance consumer protection and competition in electronic payments but also to empower consumers to securely share theirdata,enablingaccesstoawiderrangeofsuperiorandmoreaffordablenancialproductsandservices

Commissiontoconductdigitaltradenegotiations with the Republic of Korea andSingapore

Wednesday 28 June

e Council greenlighted the European Commission’s mandate to conduct digital trade negotiations with the Republic ofKoreaandSingapore

Regulation on health and safety requirements for the design and constructionofmachinery,publishedinOJ

ursday 29 June

Official publication was made of Regulation (EU) 2023/1230 on machinery which lays down health and safety requirements for the design and construction of machinery, related products, and partly completed machinery to allow them to be made available on the market or put into service while ensuring a high level of protection of the health and safety of persons, in particular consumers and professional users, and, where appropriate, of domestic animals and property, and, where applicable, of the environment. It also establishes rules on the free movement of products within its scope,intheUnion

Commission proposes legislative packageondigitaleuro,accesstocash

ursday 29 June

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e Commission put forward a legislative package concerningthesinglecurrency,which,accordingtothepressrelease, hopes to ‘ ensure that citizens and businesses can continue to access and pay with euro banknotes and coins across the euro area, and to set out a framework for a possible new digital form of the euro that the European Central Bank may issue in thefuture’.

Mandatorycollectionandstorageofngerprints in identity cards is compliant with Union law, holds Advocate GeneralMedina

ursday 29 June

Advocate General Medina delivered her Opinion in Landeshauptstadt Wiesbaden (Case C-61/22), a case concerning the collection and storage of ngerprints in newly issued identity cardsunderRegulation2019/1157

Court of Justice rules on third-country nationals, enjoying long-term residency in one of the member states, wishing to renew their residency in anotherMemberState

ursday 29 June

Council and European Parliament reach provisional agreement on revised regulation for a European digital identity

ursday 29 June

e Council and European Parliament reached a provisional political agreement on the core elements of a new legal frameworkforaEuropeandigitalidentity.

Court of Justice rules on rights of applicants for refugee status under Directives2004/83and2005/85

ursday 29 June

e Court of Justice delivered its judgment in International Protection Appeals Tribunal (Case C-756/21), a request for a preliminary ruling from the High Court (Ireland) concerning the interpretation of Council Directive 2004/83/EC on minimum standards for the qualication and status of thirdcountrynationalsorstatelesspersonsasrefugees.

Protection of Union’s nancial interests cannot take precedence over fundamental rights, concludes AG CamposSánchez-Bordona

ursday 29 June

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Today, the Second Chamber of the Court of Justice delivered its judgment in Stadt Frankfurt am Main and Stadt Offenbach am Main (Joined cases C-829/21; C-129/22) concerning the renewal of a residence permit in one of the Member States, which was initially obtained, in the status of a long-term EUresidency,inanotherMemberState.

Advocate General Campos Sánchez-Bordona delivered his Opinion in Lin (Case C-107/23 PPU), following a request for a preliminary ruling from the Court of Appeal in Brașov, concerning the applicability of the more lenient criminal law and the principle of effective and dissuasive penalties in cases ofseriousfraudaffectingtheEU’snancialinterests.

Court of Justice claries certain notions, within the meaning of Article 101 TFEU, regarding the vertical xing ofresaleprices

ursday 29 June

e ird Chamber of the Court of Justice rendered its judgment in Super Bock Bebidas (C-211/22), a case concerning a preliminary reference from the Lisbon Court of Appeal, seeking clarication on the interpretation of Article 101(1) TFEU, within the context of exclusive vertical distribution agreements, the purpose of which is to x the minimum pricesofresale.

Commission adopts implementing regulation upholding EU steel safeguard measure

Friday 30 June

e Commission published an implementing regulation maintaining the EU steel safeguard measure until its expiry onJune2024

Provisionalagreementreachedonbolstering capital market investors’ access tomarketdata

Friday 30 June

e Council reached a provisional political agreement with the European Parliament on changes to the EU’s trading rules to increase the global competitiveness of the EU’s capital marketsandgiveinvestorsaccesstothemarketdatanecessarytoinvestinnancialinstrumentsmoreeasily.

European Council draws conclusions on Russia’s war of aggression against UkraineandEU’srelationswithChina

Friday 30 June

e European Council convened in Brussels, where the EU leaders, in addition to general maers relating to the economy, security, defense, migration, and external relations, discussed Russia’s war of aggression against Ukraine and the EU’srelationswithChina.

CouncilandEuropeanParliamentreachagreementtoimprovesustainabilityofEU foodsystemsthroughanenhanceddatacollectionprocess

Friday 30 June

e Council and the Parliament reached a provisional political agreement on the Farm Sustainability Data Network (FSDN) regulation, the purpose of which is to adapt the Farm Accountancy Data Network (FADN) regulation in order to allow the collection of additional data necessary in the follow-up of the objectives of the common agricultural policy and of the European Green Dealandits'farmtofork'andbiodiversitystrategies.

Insights, Analyses & Op-Eds

Court of Justice ruled that a repatriation ight is not a re-routing under EU Regulation 261/2004 on air passenger rights:Austrian Airlines (vol

de rapatriement)(C-49/22)

by Cyril-Igor Grigorieff

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Op-Ed on the Court of Justice’s judgment in Austrian Airlines (vol de rapatriement) (C-49/22), whereby the Court held that although a repatriation ight cannot be considered as a rerouting and cannot be subject to refund, the passengers can still invoke the failure of an operating carrier to comply with its obligation to reimburse the cost of the ticket for the part notmadeornolongerservinganypurposeanditsdutytoprovideinformation.

What is an ‘environmental tax’ for the CourtofJusticetoday?

by Marta Villar Ezcurra

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Op-Ed on the Court of Justice’s judgment in Endesa and TEAC (C-833/21) concerning the dening elements of the concept of environmental tax, which, according to the author puts some important issues on the table with regard to the importanceoftheconceptualautonomyoftheEUlawandthelegalrelevanceofthedifferentcategorizationsoftaxes.

Finality or exibility? Res judicata in thespotlightRighttoKnow (C-84/22)

by Eduardo Silva de Freitas

Op-Ed on the Opinion of Advocate General Koko in Right to Know (C-84/22) concerning the application of the principle of res judicata to the operative part of a judgment, where, according to the author, the AG held a balanced approach by taking a holistic and detailed view of the Member State’s procedural conditions, in addition to one of the parties’ proceduralsituation

From the universe of EU Structural Funds: On ‘irregularity’ and ‘nancial corrections’(C-545/21,ANAS)

by Grith Skovgaard Ølykke

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Analysis of the Court of Justice’s ruling in ANAS (C-545/21) concerning the characteristics of the concept of irregularity, as enshrined in Regulation 1303/2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European MaritimeandFisheriesFund.

Takingaccountofmeasureswithamitigating effect during the Habitats Directive’s screening assessment: always a no-go?

(EcoAdvocacy,C-721/21)

by Lolke Braaksma

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Analysis of the Court of Justice’s ruling in Eco Advocacy (C-721/21) on the legal relevance of another type of measure, in relation to Article 6(3) of the Habitat Directive, that can be taken into account during the screening stage of this provision, in which it is determined whether an appropriate assessment is required.

Damage or no damage: that is the question – Österreichische Post (C-300/21) andnon-materialdamageunderArticle 82GDPRD READ

by Wolfgang Wurmnest

Op-Ed, referring to the Court of Justice’s ruling in UI v Österreichische Post (C-300/21), on the application of Article 82 GDPR which, according to the author, begs the question of determiningwhatadverseemotionalimpactconstitutescompensable damage and just how much compensation needs to be awarded to remedy the harm caused by the data controller orprocessor

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