To what extent shall a national judge apply on its own motion a rule of EU law not invoked by the parties? How should a national judge act in cases where it is constrained by national procedural rules not to apply a rule of EU lawonitsownmotion?
Frequent readers of the case law of the Court of Justice could rapidly assert that these questions have been already addressed in the landmark cases such as Van Schijdnel (2), Peterbroeck (3) or Van der Weerd (4). Connoisseurs may even point out that this is a case-oriented judicial saga, and that, beyond the general standards provided for by the Rewe (5) principles of effectiveness and equivalence, exceptions to the general rules only exist in very speci c elds of EU law, and namely that of consumer protection against unfair contract terms, where considerablydemandingobligationsareimposeduponnationaljudges
e obligation of national judges to apply EU law on their own motion (in short, ‘ ex officio application’) relates bothtotheexistenceofcommonproceduralrulesandtotheproceduralautonomyofMemberStates;andhence to the application of the Rewe principles of equivalence and effectiveness, the principle of effective judicial protection and even the Charter (and its right to an effective remedy contained in Article 47). Along the way, the case law of ex officio application has allowed the Court to stress indeed the importance of particular areas of EU law when applied by national courts, giving rise to what could be referred to as a ‘quali ed obligation’ of ex officio applicationofEUlaw,departingfromtheReweequivalence-effectivenessstandards.
and Documentation Directorate of the Court of Justice of the European Union, is a Spanish-quali ed a orneyandassociateprofessorofEULawattheUniversidadCarlosIII deMadrid.
MariolinaEliantonioisProfessorofEuropeanandComparativeAdministrativeLawandProcedurewheresheconductsresearchmainlyfocusedontheenforcementofEuropeanlawbeforenationalandEUcourts
e opinions expressed in this publication are thoseof the authors and, as such, they do not purport to re ect the opinions or views of the institutions where they performtheirduties
2. ,VanSchijndelandvanVeen,C430/93andC431/93,EU:C:1995:441.
Judgmentof14December1995
3. ,Peterbroeck,C-312/93,EU:C:1995:437.
Judgmentof14December1995
4. ,vanderWeerde a.,C-222/05toC-225/05,EU:C:2007:318.
Judgmentof7June2007
5. ,Rewe-Zentral nanzandRewe-Zentral,C-33/76,EU:C:1976:188).
Judgmentof16December1976
e case law of the Court of Justice has indeed drawn some guidelines for the ex officio application of EU law by nationaljudges Nevertheless,somerelevantquestionsonthistopichadremainedhithertounanswered.
One of the most revisited ideas on the topic has been the speculation about possible areas to which the above mentioned ‘quali ed obligation’ of ex officio application may be extended. Some very recent rulings, such as those in cases C-704/20 Staatssecretaris van Justitie en Veiligheid (Examen d’office de la rétention), (6) C-721/21 Eco Advocacy, (7) and C-660/21 KB and FS. (Relevé d’office dans le domaine pénal) (8) show that the Court of Justice is, for the time being, unwilling to extrapolate its line of case law on consumer protection to different domains, namely environmental law or judicial cooperation in criminal ma ers e Court does not categorically close the door to a quali ed obligation of ex officio application in these areas considered as a ma er of principle, but, in consideration of the speci c circumstances of the cases at stake, was not willing to establish such quali edobligationyet.Indoingso,itgiveslong-awaitedanswerstorelevantquestions.
Its reasoning and that of the Advocates General involved in these cases gives leeway to re ections about the scope and the future of ex officio application of EU law by national judges. is Long- Read aims at pu ing these very recent rulings in context, in order to grasp the most up-to-date standards for the obligation of national courtstoapplyUnionrulesontheirownmotion.
2. ecaselawoftheCourtofJusticeonexofficioapplicationofEUlaw:thestorythusfar
EU substantive law may be applied through either EU procedural secondary law or domestic procedural rules. In this context, the extent of the harmonisation of the procedural provisions at EU level plays a very important role,asitaffectsthemarginofdiscretionofthenationallegislatortoexerciseitsproceduralautonomy.
WhereacommonproceduralframeworkexistsandthusaharmonisedEUproceduralruleimposestheexofficio application of an EU rule, the duty for the national judge to apply EU law on its own motion is, or should be, unproblematic On the contrary, more sophisticated issues arise when no common procedural framework exists, which encompasses the consideration of the procedural autonomy of Member States, on the one hand, and the applicationoftheReweprinciplesofeffectivenessandequivalence,ontheother
In the context of the case law on ex officio application of EU law, a rst distinction shall be made All possible cases may be broken down into two general categories. A rst group of cases are solved on the basis of the strict application of the Rewe principles of effectiveness and equivalence. As it will be further detailed, some additional distinctions can be made concerning the cases contained in this rst group In the second group, we nd cases in which the special characteristics of the rules at stake may afford a ‘quali ed obligation’ of ex officio applicationandthereforederogatefromthegeneralrulederivingfromthestrictapplicationoftheReweprinciples.
6. ,StaatssecretarisvanJustitieenVeiligheid(Examend’officedelarétention),C-704/20andC-39/21,EU:C:2022:858.
Judgmentof8November2022
7. ,EcoAdvocacy,C-721/21,EU:C:2023:477.
Judgmentof15June2023
8. ,KB andF.S.(Relevéd’officedansledomainepénal),C-660/21,EU:C:2023:498.
Judgmentof22June2023
e vast majority of ex officio application cases belong to the rst category for which the answer is handed down in strict application of the Rewe principles. In this context it has recently become more frequent to observe also theinvocationoftherighttoaneffectiveremedyand,therefore,ofArticle47theCharter
In application of the Rewe principles, the Court has established that national courts are allowed to raise ex officio points of EU law not put forward by the parties. e question of the power or duty for national courts to raise ex officio points of EU law rst came to the a ention of the CJEU in Verholen (9). While in this case the Court acknowledged the existence of a right for national courts to consider EU law points of their own motion, the thornier question, answered in Peterbroeck and van Schijndel, is whether national courts are under a general legal dutytoexaminetheexistenceofanEUlawruleoftheirownmotion.
In both cases, the Court stated by ruling that ‘where, by virtue of domestic law, courts or tribunals must raise of their own motion points of law based upon binding domestic rules which have not been raised by the parties, such an obligation also exists where binding Community rules are concerned’. (10) It grounded this obligation ontheReweprincipleofequivalence.
en, it went further and considered whether national courts are also under an obligation to apply EU law of their own motion where national law simply allows for such application e Court answered in the affirmative invokingtheprincipleofsincerecooperation,aconsiderationlaterrepeatedinKraaijeveldaswell(11).
Finally, the Court considered the situation in which national courts are prevented from raising ex officio points not raised by the parties. In this regard, the Court did not establish an unconditional duty for national court to go beyond the ambit of the dispute as set by the parties, but national courts are obliged – on a case-by-case basis – to consider whether their own national procedural rules limiting their ex officio powers comply with the principle of effectiveness under the guise of the ‘procedural rule of reason’ and assess whether they consequently have to raise points of EU law ex officio. e general rule is therefore that national courts are not under a general obligationtoapplyEUlawwhenconstrainednottodosobyanationalproceduralrule(12).
e so-called procedural rule of reason (13) entails that, when applying the Rewe principles in relation to a precise rule of Union law preventing an ex officio application of EU law, the court should analyse the ‘role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national
Judgmentof11July1991
9. ,JoinedCasesC-87/90,C-88/90andC-89/90,AVerholenandothersvSocialeVerzekeringsbankAmsterdam,EU:C:1991:314.
10.SeevanSchijndelpara13.
11. ,CaseC-72/95,AannemersbedrijfPK KraaijeveldBVeavGedeputeerdeStatenvanZuid-Holland,EU:C:1996:404,para58.
Judgmentof24October1996
12.Seealsothe ,Farkas (C564/15,EU:C:2017:302,paragraphs32and33).
judgmentof26April2017
13.Inthisregard, S.Prechal, ‘CommunityLawinNationalCourts: eLessonfromVanSchijndel’(1998)35CommonMarketLawReview 681.AlsoR.Widdershoven,‘NationalproceduralautonomyandGeneralEULawLimits’(2019)12ReviewofEuropeanAdministrativeLaw,5.
instances’. In doing so, ‘the basic principles of the domestic judicial system, such as protection of the rights of the defense, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken intoconsideration’.(14)
is interplay between the Rewe principles and the procedural rule of reason is shown in Peterbroeck, where the Court concluded that national courts were required to raise points of EU law ex officio. If we consider in the abstract the answer of the Court, grounding an obligation to raise points of EU law ex officio would seem contradictory to the previously mentioned general rule. Nevertheless, the answer of the Court in Peterbroeck refers to a context wherein the procedural rule at stake did not appear to be ‘reasonably justi ed’ and also where the parties enjoyed li le time to react themselves to the unlawfulness of the contested decision. (15) e possibility for the parties to effectively invoke the grounds of infringement of EU law is indeed a key element in the application of the procedural rule of reason, as shown in the very recent judgment in case KB. and FS. (Relevé d’office dans le domainepénal).(16)
Inapplicationofthesaidproceduralruleofreason,theCourthasrecalledthatnationalproceduralrulesestablishing that the subject ma er of a dispute is determined by the pleas put forward by the parties in the moment in which the action is brought are consistent with the principle of effectiveness, given that they ‘ ensure proper conductofproceedingsby,inparticular,protectingthemfromthedelaysinherentinexaminationofnewpleas’.(17)
14.SeevanSchijndelpara19;also ,Aquino,C3/16,EU:C:2017:209,paras52and53. Judgmentof15March2017
15.Seeparas15-20.
16.Seepara42.
17. See van Schijndel para 21, and, more recently, the , Consorzio Italian Management et Catania Multiservizi, C-561/19, Judgment of 6 October 2021 EU:C:2021:799,para64.
e general rule is that national courts are not under a general obligation to apply EU law when constrained not to do so by a national procedural rule
Among the rst category of cases governed by the application of the Rewe principles, some involve the considerationofaparticularUnionruleasama erofpublicpolicy IfthegeneralpointofdeparturesetinPeterbroeckand vanSchijndelisthatEUlawdoesnotgenerallyrequirenationalcourtstouseexofficiopowerstoconsiderpointsof EU law which have not been raised by the parties, the following question is whether EU law can be considered a ma erofpublicpolicy,whichwouldtriggertheuseofexofficiopowersconferredoncourtsbynationallaw.
In the van der Weerd case, the Court con rmed that a national court is not required, on the basis of the principle of equivalence, to raise of its own motion points of law based on binding Union rules which have not been raised by the parties if it is not authorised to do so under national law in respect of similar rules of national law In the samecasetheCourtalsocon rmedthatEUlawdoesnotpersehavea ‘publicpolicystatus’andshouldnot–justbecausearulequali esasEUlaw–beappliedbynationalcourtsoftheirownmotionunderthepublicpolicyexofficiopowersofanationalcourt.Inthiscase,theCourtalsojudgedthatsomeprovisionsofEUlawhavealesserstandingthaninternalofrulesofpublicpolicy,withreferencetoDirective85/511.(18)
is approach was con rmed more recently in the Benallal case, (19) where the Court stated that if the admissibility of a plea depends on the consideration of a right conferred by EU law as a ma er of public policy, the national judge must consider whether the right at stake (the right to be heard in that occasion) as guaranteed by national law,satis estheconditionsrequiredbynationallawforittobeclassi edasapleabasedonpublicpolicy. (20)
In some cases, therefore, the Court relies on the judgment by the national court about the equivalence or similarity between of a rule of EU law and internal rules classi ed as rules of public policy. In other cases, however, related to competition law and consumer protection, the Court itself declared that a rule of EU law enjoys the same status conferred to internal rules of public policy. In Eco Swiss, the Court ruled on the possibility for a national civil court, reviewing an arbitration award, to annul the award because it infringed EU competition law rules, although an argument to this effect had not been raised in the arbitration proceedings (21) Under Dutch law, a civil court could raise a point of law on its own motion and consequently annul an arbitration award only on limited grounds, amongst which was the fact that the award was contrary to public policy e referring court, however, pointed out that under national law the non-application of EU competition law was not regarded as a public policy argument It considered that the competition law regime was an overriding interest of fundamental importance for the completion of the tasks of the EU and therefore the relevant rule at stake had to be considered as a ma er of public policy While this la er point was not completely made clear by the Court in Eco Swiss, it was later stated in unequivocal terms in Man edi, where the Court held that ‘Articles 81 EC and 82 EC [Articles 101 and102TFEU]areama erofpublicpolicywhichmustbeautomaticallyappliedbynationalcourts’. (22)
18.Seeparas30and31.
19. ,BensadaBenallalC-161/15EU:C:2016:175.Judgmentof17March2016
20.Para35.
21. ,CaseC-126/97EcoSwissChinaTimeLtdvBene onInternationalNVEU:C:1999:269. Judgmentof1June1999
22. ,Man edie a.,C-295/04àC-298/04,EU:C:2006:461,para36. Judgmentof13July2006
In the context of consumer protection, the Court has also gone one step further and has established that Article 6(1) of Directive 91/13 (concerning the non-binding character of unfair terms) enjoys such status. (23) In these cases, as long as ex officio application of national law is imposed upon nationalrulesofpublicpolicy,theprincipleofequivalenceentails identical obligations in regard to these anointed provisions of EU law, which will also bene t from such derogation of the rules of procedure. When the Court establishes that a rule of EU law enjoys the status of a public policy rule, it allows for the ex officio application of such rule as far as the national procedural rules establish so in relation to internal public policy rules. e obligation of ex officio application is therefore the consequence of the strict application of the principle of equivalence, and hence not a derogation fromthegeneralstandards,whicharedealtwithinthenextsection
Incasesdealingwithspeci careasofEUlaw,andnamelyintheareaofconsumer protection against unfair contract terms, the Court has derogated from the standards described above, and has established quali ed obligations of ex officio application by national judges, in consideration of the imbalanceexistingbetweentheconsumerandthesupplierandtheneedto ensuretheeffectiveprotectionaimedatbyDirective93/13.
e seminal case in this line of case law is Océano Grupo. (24) In this case, the Court ruled that the protection provided for consumers by Directive 91/13 (25) entails that a national court must be able to determine of its own motion whether a term of a contract before it is unfair, and that, therefore, the court in question must have the power to raise points of EU law of its own motion if that is necessary to protect a consumer. Interestingly, in this case, no speci c legal tool was used by the Court to reach this conclusion, and the ruling only refers to the need to ensure ‘effective protection’ to consumers as required by the Directive. On this basis, the Court held that the power of national courts to determine, of their own motion, that the jurisdiction clause in a consumer contract amounted to an unfair term, wasnecessarytoprotectconsumersagainstunfaircontractterms.
23. , Gutiérrez Naranjo and Others, C 154/15, C 307/15 and C 308/15, EU:C:2016:980, paras 54 and 55. See also Judgment of 21 December 2016 Judgment of 17 May 2022 Judgment of 17 May 2018 , Unicaja Banco, EU:C:2022:397, para 24 and , Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen, C147/16,EU:C:2018:320,para35.
24. ,OcéanoGrupoEditorialetSalvatEditores,C-240/98toC-244/98,EU:C:2000:346. Judgmentof27June2000
25. of5April1993onunfairtermsinconsumercontracts[1993]OJL95/29.CouncilDirective93/13/EEC
In the area of consumer protection against unfair contract terms, the Court has established quali ed obligations of ex officio application by national judges
e same reasoning was followed in a long line of case law concerning this policy area where national rules on ex officio powers do not seem to be tested against the ‘procedural rule of reason’ (even though the Court may indeed invoke the Rewe principles). (26) is line of reasoning has been maintained in recent cases, such as Unicaja (27), Ibercaja (28) and SPV Project (29) In these judgments, (30) the Court has gone as far as deactivating core internal procedural principles such as the delimitation of the subject ma er of the proceedings by the parties (respected incasesfollowingthegeneralstandards ofexofficioapplication,suchasvanSchijndel),theprohibitionofreformatio in peius, different expressions of res judicata (also respected in general terms in the case law of the Court of Justice)andwellestablishedtime-limitswithregardstoconsumersthatwereassistedbyalawyer.
Under the standards of this case law, almost no procedural constraints stand in the way of the obligation imposed upon national courts to assess ex officio the fairness of a contractual term, when the legal and factual elements are available, or to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or supplier. To this end, the Court does invoke the Rewe principles, together with several provisions of Directive 93/13 (namely Articles 6(1) and 7(1) together with Recital 24) and the right to an effective remedy enshrined in Article 47 of the Charter. Nevertheless, these are not standard cases in relation to the strict application of the Rewe principles and the procedural rule of reason, given that the Court would seem to overstretch their range (especially that of the principle of effectiveness) in consideration of the rulesofEUlawatstake
Almost no procedural constraints stand in the way of the obligation imposed upon national courts to assess ex officio the fairness of a contractual term, when the legal and factual elements are available, or to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or supplier
26. See , Co dis, C-473/00, EU:C:2002:705; , Mostaza Claro, C-168/05, EU:C:2006:675; judgments of 21 November 2002 of 26 October 2006 of 4 October 2007 of 4 June2009 of 9 novembre 2010 , Rampion and Godard, C-429/05, EU:C:2007:575; , Pannon GSM, C-243/08, EU:C:2009:350; , VB Pénzügyi Lízing, C-137/08, EU:C:2010:659; , Pohotovosť, C-76/10, EU:C:2010:685; and judgment , Radlinger and Radlingerová order of 16 novembre 2010 of 21 April 2016 (C377/14,EU:C:2016:283.
27. ,UnicajaBanco,C-869/19,EU:C:2022:397.
Judgmentof17May2022
28. ,IbercajaBanco,C-600/19,EU:C:2022:394.
Judgmentof17May2022
29. ,SPVProject1503e a.,C-693/19andC-831/19,EU:C:2022:395. Judgmentof17May2022
30.Forananalysisofthesecases,seethe byE.VallinesinEULawLiveOp-Ed
Considering the general standard established in the Court’s case law on ex officio application, whereby, on the one hand, there is no general duty of ex officio application of EU law beyond the de nition by the parties of the scope of a dispute and, on the other hand, quali ed obligations of ex officio application are imposed in speci c areas,theautomaticre existowondertowhatextentthedynamicoftheconsumerprotectioncaselawcanbeextrapolatedtoother eldsofEUlaw.
Arethesestandards exportable?Isthereacasefordevelopingnew ‘special’areasinwhichquali edobligationsof ex officio application may be applicable? What triggers a quali ed ex officio obligation? Is it the quality of the rights or regulations at stake? Is it their legal basis? Is it the structural disadvantage of the applicant in a given eld?
A good opportunity to shed some light came along in case C-704/20 Staatssecretaris van Justitie en Veiligheid (Examen d’office de la rétention), where the Dutch Raad van State (Council of State) had asked, in essence, whether a national court may examine ex officio the conditions for the lawfulness of a detention or continued detention of a third-country national that have not been put forward by the applicant, despite the existence of a nationalproceduralrulewhichpreventsthecourtfromdoingso.
Advocate-General(AG)DeLaTourhadpointedouttheabsenceofcommonproceduralrulesregardingthescope of review in the assessment of the lawfulness of detention or continued detention, and hence the response he suggested was grounded on the application of the Rewe principles. e question would therefore be whether a national provision that restricts the review of the lawfulness of detention to the pleas and arguments raised by theapplicantrespectstheboundariesoftheproceduralautonomyoftheMemberstates.(31)
Inhis Opinion,theAGpurported,inshort, thatthefactthattherightatstakeis therighttoliberty,guaranteedby the Charter, justi ed the need for full review by the national court of the conditions pertaining to the lawfulness of the detention, despite the possibility to invoke the breach of EU law by the applicant and the existence of procedural guarantees within the Dutch system, such as the right to be assisted by a lawyer. (32) In the view of the AG, it would seem that is the quality of the right a stake and its importance within the EU legal order that allows for a deviation of the general standards of ex officio application. e AG suggested, in essence, the transposition ofthequali edobligationstandardspresentinconsumerprotectioncases,asdescribedabove
In contrast, the Grand Chamber considered that the EU legislator has established common procedural standards that allow for a full ex officio examination of the grounds of detention and continued detention. (33) Deter-
31.Seeparas73etseq oftheAG’sOpinion.
32.Seeparas82to92oftheAG’sOpinion.
33.Seeparas86etseq.
mining the existence of harmonised procedural rules, ‘strictly circumscribed’ to the administrative procedures of detention and continued detention, allowed the Court not to derogate the general standard governing ex officio application in civil and administrative procedures, which, as explained supra, would not require national courts to raise points of EU law which have not been raised by the parties (34) Coherently, the Court pointed out a fortiori that, in the scenario of procedural harmonisation, the fact that the legal provisions at stake are of public policynatureisirrelevant.(35)
In essence, the systematic interpretation of this particular procedural framework is grounded on the idea that, if Union rules at stake establish a continued control of the lawfulness of the detention (which may cease to ful l the necessary conditions) the right to an effective remedy requires the possibility of ex officio application of EU law (36) It is noteworthy that the relevance of the right to liberty is herein invoked as an argument in favour of the existence of common procedural rules, rather than, as suggested by the AG, one used to judge the compatibility with Union law of the national procedural framework (37) In this regard, the Court had also pointed out the seriousconstraintstotherighttolibertyinthecontextofadetentionofathirdcountrynational,whichdoesnothaveasapurposetheprosecutionofacriminaloffence (38)
ejudgmentincaseC-704/20StaatssecretarisvanJustitieenVeiligheid(Examend’officedelarétention)allows for three intermediate re ections. First, that to the extent possible, the Court seem to be willing to carry out an extensive interpretation of EU legislation in order to establish the existence of a common procedural framework. e fact that the AG did not consider that such framework existed is quite eloquent in this regard.Second,that in those cases where harmonised rules exist, the analysis performed on the basis of procedural autonomy is substituted by one based on the potential clash between a national and an EU procedural rule of somewhat identical scope, to be solved on the grounds of primacy. (39) And third, that, in doing so, the Court avoids opening the door to a quali ed obligation of ex officio application in areas different from consumer law, as had instead been suggestedAGDeLaTour,whohighlightedtothatendtheimportanceoftherighttoliberty.
Yet, what would the Court rule in a case in which such common procedural framework was nowhere to be found?CaseC-721/21EcoAdvocacywassuchcase.Inthecontextofadisputeregardingtheconstructionofdwellings near the special area of conservation of the River Boyne and the River Blackwater, Eco Advocacy, an environmental association, had challenged the validity of a planning permission issued by the correspondent administrative authority Even though it had invoked Directive 92/43 (40) and Directive 2011/92, (41) Eco Advocacy had not clearly speci ed any provisions of these measures to support its claim – an omission which, pursuant to
34.Seeparas91and92.
35.Seepara93.
36.Seeparas78-83and89.
37.Seeparas88.
38.Seeparas72-75.
39.SeealsointhissenseS Prechal, opcit.MorerecentlyJ Krommendijk,andI.Hendrikx,‘PickingPrimacyoverProceduralAutonomy’,VerfBlog
40. of21May1992ontheconservation ofnaturalhabitatsandofwildfaunaand ora[1992]OJL206/7. CouncilDirective92/43/EEC
41. of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private Directive 2011/92/EU projectsontheenvironment[2012]OJL26/1.
the applicable internal procedural rules, would entail the inadmissibility of such pleas. Against this background, the High Court of Ireland asked whether EU law would preclude such a national procedural rule and, therefore, whetherEUlawrequiresorallowsfortheexofficioapplicationoftheenvironmentalrulesoftheUnionatstake.
In this case, both the Court and AG Koko share their reading of the Union rules at stake, and of the absence of common procedural standards governing the power of national courts to extend their examination of the lawfulnessofanadministrativeactsuchasthecontesteddecisionbeyondthegroundsraisedbytheapplicant. (42)
A er reminding of the scope of the principle of effectiveness in this regard, and hence the lack of a general rule that requiresexofficioapplicationbynationaljudgesbeyondtheambitofthedisputede nedbythepartiesthemselves, theCourtanalysedwhetherthespecialcharacteristicsofthespeci cEUrulesatstakewouldentailaquali edobligation of ex officio application of EU law (43) In this regard, the Court brie y stated that, considering the pleas in law advanced in the main proceedings, such special characteristics could not be inferred from the EU law requirements in relation to the case at stake. (44) Having observed that no other answer should arise from the application of the principle of equivalence, as the Irish procedural rules do not make distinctions between Union and internal rules,theCourtansweredthatEUlawdoesnotimposetheexofficioapplicationoftherulesatstake (45)
e reasoning in the AG’s Opinion is key to fully understand the ultimate consequences of the judgment in this case AG Koko points out that the exceptional derogations to the general rule concerning the ex officio application of Union law by national judges in the eld of consumer protection could ‘potentially be transposed to EU environmental law in cases involving a risk of particularly serious infringements’, (46) which did not seem to exist in thecaseatstake.
e equilibrium proposed by the AG is then followed by the Court, which expressly states that it is the particular pleas in law at play in the main proceedings that do not allow for a derogation from the general rules on ex officio application when constrained by national procedural rules, rather than the consideration of environmental law as whole. erefore, this distinction implicitly allows for future cases pertaining EU environmental law with a differentoutcome.
e case C-660/21 KB and FS. (Relevé d’office dans le domaine pénal) completes this puzzle e main proceedings concern a trial for fuel the before a criminal court in France. e evening of their detention, certain investigative acts took place and self-incriminating statements was given before the suspects were informed of their rights, in infringement of Articles 3 and 4 of Directive 2012/13. (47) Such delay would have entailed the annul-
42.Seepara20oftheJudgmentandparas46-48oftheOpinion oftheAG
43.Paras21-24.
44.Para25.
45.Paras26-29.
46.Para51.
47. of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ Directive 2012/13/EU L142/1.
ment of these acts and statements – a circumstance which, however, was not raised by the suspects’ counsel at trial. Given that, according to the interpretation of the French Criminal Code by the Cour de cassation, trial courts are not to raise on their own motion pleas for procedural invalidity other than their own lack of jurisdiction,thereferringCourtwonderedwhetherUnionlawimposessuchadutyonthenationaljudge
e Grand Chamber answered that such duty of exofficio application did not exist within the context of the main proceedings. Even though the delay in the communication of the right to remain silent was in violation of Articles3and4ofDirective2012/13,theCourtresponseisfocusedontherighttoaneffectivejudicialremedy.
Inthisregard,theCourtstatedthat, wheninfringementsofthelikeoccur,suspectsmustbeinmeasuretorequest judicial review of the authorities’ decisions, by virtue of Article 8(2) of Directive 2012/13. erefore, in the absence of a common procedural framework, Member States must ensure that Article 47 of the Charter is respectedwhenenforcingtherightsconferreduponsuspectsbyDirective2012/13.
Totheextentthatthesuspectsinthemainproceedingswereassistedbyalawyerandhadtheopportunity,within a reasonable time limit, to invoke the procedural invalidity derived from the infringement of the Directive, the CourtconsideredthattheUnionrulesatstakedonotimposetheapplicationofEUlawexofficio
Furthermore, the Grand Chamber expressly rejected that a different response should be given in consideration of the judgments handed down in Peterbroeck and in relation to unfair terms, as had been suggested by the referring judge. A er observing the differences in the substance with regards to the Peterbroeck case, the Court brie y stated that the legal context within which the rules of consumer protection are established must be distinguished from that of criminal proceedings such as those at stake in the main proceedings, and hence denied the suggestedextrapolationoftheprinciplesestablishedintheformertowardsthela er
Again, it is very insightful to consider the Opinion of the AG, followed in substance by the Court, which points in many interesting directions not expressly addressed in the judgment. AG Pikamäe observes that Directive 2012/13 establishes a minimum harmonisation of criminal procedures and that, as a non-exhaustive instrument,itmustbeinterpretedinconsiderationoftheprinciplesofmutualtrustandmutualrecognition.
Having also observed the lacking common procedural framework and underscored, as the Court would also do, the existence of procedural guarantees within the French legal system and namely the assistance by a lawyer and itsconsequences,theAGchoosestoanalysethequestionthroughthelensesoftheprincipleofeffectiveness,rather than that of the right to an effective judicial remedy, which he uses notwithstanding to reinforce the soundnessofitsreasoning. (48)
48.Seeparas65and66oftheOpinion.
When addressing the differences between the consumer protection case law and the standards to apply regarding the ex officio application of Union law in criminal proceedings, the AG makes yet another interesting remark: consumers do not bene t from the protection conferred to suspects by legal instruments such as the Directive 2012/13, the Charter and the ECHR is point of view provides for an additional reason to purport the need for an exceptional treatment towards consumers claim, even though some questions still remain open with regardstotheoverallconsistencyofthecaselaw
Maybe connoisseurs were right all along and the general conclusion to be drawn from all of the above is that no great developments have been made to the general standards of ex officio application of Union law by national judges. e deviation from general standards is still exclusively reserved for consumer protection and a spillover from the standard of quali ed obligation of ex officio application reserved for consumer protection into other areas of EU law remains unseen. It is, however, interesting to observe how, in the mind of some Advocates General,suchspilloverwouldbereasonableundercertaincircumstancesandcouldhaveevenbeenthesolutionofsomeofthecasesdescribedabove.
It seems fair to point out that maybe slight changes in the background of these cases could have triggered very different responses. What would have happened, for example, if in a case similar to Eco Advocacy the main proceedings referred to or could entail a serious infringement of environmental law? Or, again, if in Staatssecretaris van Justitie en Veiligheid (Examen d’office de la rétention) an interpretation of the existence of a common procedural framework was deemed unreasonable? Would have the Court then openedthegatesofthequali edobligation?
Because of the fact that the Court has not found different areas of EU law other than consumer protection that require establishing quali ed obligations, it seems also fair to observe the existence of an abyss between the general standards of exofficio application and thosepertainingtoconsumerprotection.
If taken in the abstract, such great contrast entails certain inconsistencies, such as the fact that the non-binding character of unfair contracttermssetforthinDirective93/13enjoysthestatusofaruleofpublicpolicy,buttherighttobeheardortherighttolibertydo not. In the same vein, the fact that assistance by an a orney is deemed relevant in relation to the balancing exercise with regards to
Because of the fact that the Court has not found different areas of EU law other than consumer protection that require establishing quali ed obligations, it seems also fair to observe the existence of an abyss between the general standards of ex officio application and those pertaining to consumer protection
the right to be heard and the information obligations thereupon, as shown by KB and FS, but it does not entail changes to the output within the consumer protection case law. erefore, not only the role of the national judge differs greatly from one case to the other, but also that of the lawyers of consumers, which, unlike lawyers in criminal proceedings, can afford to miss several deadlines (49) and still obtain a successful result for their clients, justaslongastheyarenot‘completelyinactive’.
If, as suggested by AG Pikamäe in KB and FS, the reason for the different treatment of suspects in criminal proceedings and consumers entering into contracts is that suspects are already protected by legal mechanisms of both primary and secondary EU law, it is noteworthy that the existence of such additional mechanisms is justi ed in light of the serious interference with fundamental rights that may arise from criminal proceedings, which does not arise in consumer contracts Also, it is purported that the minimum harmonisation of the legal instruments related to the area of freedom, security and justice (AFSJ) and the consideration of principles of mutual trust and mutual recognition would suggest self-restraint by the Court when allowing for quali ed obligations of ex officio application in this area. In any case, as convincing as these assertions may be, they are not part of the Court’sreasoning.
Overall, there seems to exist isolated dynamics that belong exclusively to the eld of consumer protection, with no interaction with the rest of the EU legal order. is measured isolation of consumer law, which does not seem to be grounded in any particular provisions of EU law other than consumer protection instruments, is not exclusive of the ex officio application cases, as recent decisions of the Court show. (50) As far as the only ‘special’ area remains to be consumer law, it would seem that the Court already prevents ooding national courthouses with obligations of ex officio application, which could certainly cause some judicial turmoil throughout our continent. Yet, such isolation is being translated into a lack of coherence between the general and the exceptional standards which seems to blur the solidity of core elements to be assessed by national judges when applying EU law, such as the notion of public policy, the procedural autonomy of Member States and the principle of effectiveness, which would seem to mutate depending on the applicable rulesineachcase.
50. See, for example, the order of the Court of 6 May 2023, Deutsche Bank (Entente – Produitsdérivés de tauxd’intérêten euro), C-198/22 et C-199/22, not published, EU:C:2023:166,paragraph51,orthe ,Trá cosManuelFerrer,C-312/21,EU:C:2023:99,paragraph45.
judgmentof16February2023
As far as the only ‘special’ area remains to be consumer law, it would seem that the Court already prevents ooding national courthouses with obligations of ex officio application. is is translated into a lack of coherence between the general and the exceptional standards which seems to blur the solidity of core elements to be assessed by national judges when applying EU law
Monday 26 June
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Official publication was made in the OJ of three cases concerning actions for annulment against certain Council measures, decisions adopted under the CFSP, and regulations, regardingrestrictivemeasuresinrespectofactionsunderminingor threatening the territorial integrity, sovereignty, and independence of Ukraine: Rosbank v. Council (T-270/23), Alfa-Bank v.Council(T-271/23),Avenv.Council(T-283/23).
Monday 26 June
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Fourcasesregardingactionsforannulmentinrelationtomeasures adopted by the Council and the Commission in regard to the protection of the Union budget against breaches of the principles of the rule of law in Hungary were published in the OJ: Óbudai Eg yetem v Council and Commission (T-132/23), llatorvostudományi Egyetem v Council and Commission (T-133/23), Miskolci Egyetem v Council and Commission (T-139/23), Dunaújvárosi Egyetem v Council and Commission(T-140/23)
Monday 26 June
Official publication was made of an action for annulment against a Commission Decision ordering the inspection of premises of an undertaking over concerns of a violation of antitrustrules,speci callyofArticle101TFEU.
Monday 26 June
A case concerning a preliminary ruling request, whereby clari cation is sought regarding the interpretation of Article 16 of the GDPR on the data subject’s right to have their personal data recti ed by the data controller, particularly vis-à-vis the principle of accuracy established in Article 5(1)(d) of the GDPR, was officially published in the OJ: Deldits (C-247/23).
Monday 3 July
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Official publication was made of a preliminary ruling request, whereby clari cation is sought on the compatibility of a nationalrulewhichprovidesfortheapplicationofthepenalty of forfeiture of the provisional security, as an automatic consequence of the exclusion of an economic operator from a procedure for the award of a public service contract, irrespective of whether or not that economic operator has been awarded the contract, with certain fundamental rights, freedoms, and principles of EU law, as well as the ECHR: Paolo Beltrami (C-235/23).
Tuesday 4 July
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Official publication was made of a request for a preliminary ruling (C-209/23) brought by the Landgericht Mainz (Germany) in a proceeding confronting FT and RRC Sports GmbH against the Fédération Internationale de Football Association (FIFA), concerning the precluding power of FIFA rules upon national professional leagues and their actors.
Wednesday 5 July
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e European Commission put forth a new regulation aimed at improving the enforcement of the General Data Protection Regulation in cross-border cases, by enhancing cooperation between data protection authorities when dealing with cases involvingindividualsinmultipleMemberStates
Tuesday 4 July
Official publication was made, in the OJ, of the Commission ImplementingRegulation(EU)2023/1404of3July2023imposing a de nitive anti-dumping duty and de nitively collecting the provisional duty imposed on imports of stainless steelre llablekegsoriginatinginthePeople’sRepublicofChina.
Tuesday 4 July
e Grand Chamber of the Court of Justice rendered its judgment in MetaPlatformsandOthers(Generaltermsofuseofasocial network) (C-252/21), where it held that a national competitionauthoritycan ndaninfringementoftheGDPR,within the context of examining competition concerns relating to an abuse of dominant position, and it clari ed the extent to whichitmightdoso
Wednesday 5 July
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e General Court dismissed an action brought by Carles Puigdemont i Casamajó, Antoni Comín i Oliveres, and Clara Ponsatí i Obiols against the decisions of the European Parliamenttowaivetheirimmunity.
Court of Justice: A national competition authority may nd an infringement of the GDPR within the context of examining an abuse of dominant position
Commission Implementing Regulation on a de nitive anti-dumping duty imposed on stainless steel re llable kegs originating from China, published inOJ
Wednesday 5 July
eEuropeanCommissionopenedanin-depthinvestigation to assess whether a Danish and Swedish recapitalization measure,infavorofSAS,whichwasinitiallyapprovedbytheCommission under the State Aid COVID Temporary Framework but subsequently annulled by the General Court, is in line withEUStateaidrules
Wednesday 5 July
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By bringing together input from Civil Society, Member States’ national authorities, and independent judiciaries, as well as key statistical data from its Early Warning and Preparedness System and Eurostat, the European Union Agency for Asylum (EUAA) published its annual agship Asylum Report.
Wednesday 5 July
Wednesday 5 July
e General Court has annulled the Commission Implementing Regulation 2020/2100 imposing a de nitive antidumping duty on imports of ammonium nitrate from Russia: Nevinnomysskiy Azot and NAK “Azot” v Commission (case T-126/21).
Wednesday 5 July
e Grand Chamber of the ECtHR rendered its judgment, in the case of Hurbain v. Belgium (application no. 57292/16), where it held, by a majority (12 votes to 5), that there had been no violation of the freedom of expression, as prescribed byArticle10oftheECHR
Wednesday 5 July
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e European Commission released its fourth annual Rule of Law Report, which assesses the state of the rule of law in each EU Member State, focusing on four pillars: national justice systems, anti-corruption frameworks, media pluralism, and institutionalchecks-and-balances.
e modernized EU-Chile agreement, the aim of which is to make it possible for the EU and Chile to strengthen political dialogue, deepen cooperation, and improve trade and investment opportunities was sent by the Commission to the Councilforauthorizingitssignature.
ursday 6 July
e European Commission approved, under the EU Merger Regulation, the proposed acquisition of GfK by Advent, conditional upon full compliance with the commitments offered byAdvent.
ursday 6 July
e Court of Justice delivered its judgment in Austrian Airlines (C-510/21), where it held that the strict liability of airlines under the Montreal Convention extends to inadequate rst aid administeredonboardanaircra .
ursday 6 July
ursday 6 July
no 2201/2003: Court of Justice providesinterpretation READ MORE ON
e Court of Justice rendered its judgment in BM (Résidence du demandeur de divorce) (C-462/22) concerning a reference for a preliminary ruling on the interpretation of the sixth indent of Article 3(1)(a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonialma ersandthema ersofparentalresponsibility.
e ECtHR delivered its judgment in the case of Tuleya v. Poland (applications nos. 21181/19 and 51751/20) concluding by 6 votes to 1, that there had been: a violation of Article 6 § 1 (right to a fair trial); and a violation of Article 8 (right to respectforprivatelife)ECHR
ursday 6 July
Advocate General Ćapeta delivered her Opinion in Dyson and Others v. Commission (Case C-122/22 P), an action for non-contractual liability of the European Union concerning theEnergyLabellingDirective(Directive2010/30/EU)
ursday 6 July
e Court of Justice rendered its ruling today, in Bundesamt für Fremdenwesen und Asyl (C-663/21), where it clari ed the conditions for adopting a decision to revoke the refugee statusofathird-countrynationalconvictedofaseriouscrime.
Commission’s breach of Energy Labelling Directive is sufficiently serious, holdsAGĆapeta
ursday 6 July
Advocate General Richard de la Tour handed down his Opinion in OE v. Minister for Justice and Equality (Case C142/22), a request for a preliminary ruling from the Supreme CourtofIreland. ecaseconcernstheinterpretationofArticle 27 of the EAW Framework Decision (2002/584/JHA) (EAWFD).
ursday 6 July
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AG Ćapeta delivered her Opinion in MG v Banque européenne d’investissement (C-173/22 P) concerning an appeal lodged against judgment of 21 December 2021, MG v EIB (T-573/20, not published) concerning how an institution should decide on the distribution of family allowances when twomembersofstaffworkingforthesameinstitutionseparate.
Friday 7 July
ursday 6 July
e Court of Justice rendered its judgment in Commissaire général aux réfugiés et aux apatrides (C-8/22), where it clari ed certain conditions for adopting a decision pursuant to Article 14(4)(b) of Directive 2011/95/EU on standards for the quali cation of third-country nationals or stateless persons as bene ciaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and forthecontentoftheprotectiongranted
ursday 6 July
e Court of Justice handed down its judgment in RQ v CouncilandCommission(CaseC-7/22P)concerninganaction brought by RQ and four other claimants for compensation for the loss they allegedly suffered as a result of the implementation of a compulsory exchange of government debt securities, in respect of the participation of private investors involving the application of collective action clauses, due to the conduct or actions of the Eurogroup, its President, the Heads of State or Government of the Eurozone, and the European Commission
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e Council and the European Parliament reached a provisional agreement on the Act in Support of Ammunition Production (ASAP), aiming to enhance the manufacturing capabilitiesofammunitionandmissilesintheEU
Friday 7 July
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Official publication was made of a Commission Recommendation clarifying the role of sustainable nance in facilitating the transition and highlighting existing EU sustainable nanceframeworksandmethodologies.
Finding that EAW was issued by authority which did not constitute an ‘issuing judicial authority’ does not invalidate subsequent request for consent under Article 27 of the Framework Directive, holdsAG
Conviction of a particularly serious crime does not presume the existence of present danger, when revoking refugee status of thirdcountry
AG Ćapeta on how an institution should decide on the distribution of family allowances when two members of staffworkingforthesameinstitutionseparate
ESA issues measures against Norway for breaches of EEA rules on patient rights, PointsofSingleContact,andammonia-emissionstargets READ
Friday 7 July
e EFTA Surveillance Authority (ESA) issued three measures (two le ers of formal notice and one reasoned opinion) against NorwayduetoitslackofcompliancewithcertainobligationsunderEEArules.
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Op-Ed on the Court of Justice’s judgment in ECB vs. Crédit Lyonnais (C-389/21 P), focusing, particularly, on the examination of the applicable legal framework and the content of the contested ECB decision and the contrast between the GeneralCourt’sandtheCourtofJustice’slinesofreasoning.
C-755/21P
by Andrea ParzialeOp-Ed on the Opinion of AG Rantos in Kočner v Europol (C-755/21 P), where he argued, among other things, that Europol and an EU Member State might be jointly and severally liable for damages caused by the unlawful processing of personaldata
by Erriketi Tla da SilvaREAD MORE ON EU LAW LIVE
Analysis of the Court of Justice’s judgment in Saint-Louis Sucre v Premier ministre and Others (C-183/22) essential clari cations regarding the composition of Producer Organizations and the conditions to be controlled in order to ensure their independence, given their importance in a aining the objectives of the Common Agricultural Policy and the consequences of the official recognition of an organization as a ProducerOrganizationregardingthegrantingofaidandthederogationsfromArticle101(1)TFEU
Clari cations regarding the composition and the independence of Producer Organisations under the CMO Regulation(C-183/22)
Analysis of the judgment in ermalhotel Fontana (C-411/22), which, according to the author, constitutes an importantclari cationofwhethercompensationforcompulsory isolation measures ordered in the context of COVID-19 can be regarded as a ‘sickness bene t’ (Regulation 883/2004, Article 3(1)(a)) as well as an affirmation of equal treatment rightsoffrontierworkers.
Op-Ed on the Court of Justice’s judgment in Pankki S (C-579/21) where the Court clari ed the weighing sometimes of con icting interests involved in deciding on a request for access to personal data by the data subject, which, according to the author, strengthens the internal consistency of Article15GDPR.
Under the theoretical underpinning of the theory of the emergence of federations developed by William Riker (1964), Tomasz demonstrates that the USA and the EU experienced a shi of power in scal ma ers to the higher level of government because of an internal threat based on the debt crisis While in the US the debt crisis in the 1780s triggered the emergence of the power to tax by the Federation enshrined in the US Constitution, in the EU,conversely,theeuro-crisisin2010s,strengthenedtheEUauthoritytoregulate scalpolicies of the Member States without leading to the creation of an EU autonomous power to tax In this sense, according to the reviewer, Tomasz’s book offers an outstanding and original analysis of the meaning of scal union, mirroring the EU economic integration with the USconstitutionalexperience.
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