Weekend Edition Nº156

Introduction

Ilaria Gambardella and Victor Davio

Irene Wieczorek

e procedural rights directives as part of a broader paradigm shi in EU Criminal Law

Michele Panzavolta

Some critical reections on the procedural rights Directives

Nasiya Daminova

e European Court of Human Rights on the ‘Stockholm’s Roadmap Directives’: the quest for a coherent application of ‘due process’ rights in Europe?

Anna Mosna

Roadmap beyond criminal law: what defence rights in administrative punitive proceedings?

Week 25-29 September 2023

Highlights Insights, Analyses & Op-Eds

Introduction

Ilaria Gambardella and Victor Davio 1

At the core of this special issue lies the celebration of an almost birthday – an occasion that marks nearly 15 years since the adoption of the Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings (3). In 2009, the Council endorsed this Roadmap, (4) seing in motion a transformative journeythathasbeenshapingthelandscapeofproceduralrightsincriminalmaersacrossEurope

As we reected collectively on this remarkable journey, (5) it appears that the age of 15 was quite ing for the Roadmap. It represents the age of an advanced teenager that has matured and is approaching adulthood. However,itstillhasroomtogrowandnditsplaceintheworld.

Since2009,sixdirectivesonproceduralrightshavebeenadoptedbasedonArticle82(2)TFEU,namely:theDirectiveontherighttointerpretationandtranslation,(6) theDirectiveontherighttoinformation,(7) theDirective on the right to access to a lawyer, (8) the Directive on the presumption of innocence, (9) the Directive on the right of children in criminal procedures, (10) the Directive on the right to legal aid. (11) Together with the Charter of Fundamental Rights, in particular its Articles 47 and 48, they contribute to the development of a more value-based EU criminal law and they have been subject to increasing interpretation by the Court of Justice of the EU.(12)

1. Doctoral researcher, Research Foundation Flanders(FWO) and Institute for European Law (KU Leuven). Ilaria’s research is funded by the PhD fundamental researchgrantofFWO(grantNo11B7523N).

2. Doctoral researcher, Institute for EuropeanLaw (KU Leuven). Victor is part of the RESHUFFLEresearch project hosted byKU Leuvenunderthe direction of Prof. Elise Muir, and supported by the European Research Council (European Union’s Horizon 2020 research and innovation programme, grant agreement No 851621)

3. Resolution of the Council of 30 November 2009 on a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedingsOJ2009C295,p.1.

4.e —AnopenandsecureEuropeservingandprotectingcitizensOJ2010C115,p 1. StockholmProgramme

5. is special issue is the fruit of a joint research event co-organised in June 2023 by three research institutes bound by a shared interest in the procedural rights directives, the Centre for European Law of ULB, the Institute of Criminology of KU Leuven and the Institute for European Law of KU Leuven. is research eventwashostedbythelaerInstituteandtheRESHUFFLEproject.

6. of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal procee- Directive 2010/64/EU dingsOJ2010L280,p 1.

7. oftheEuropeanParliamentandoftheCouncilof22May2012ontherighttoinformation incriminalproceedingsOJ2012L142,p 1. Directive2012/13/EU

8. of the EuropeanParliamentandof the Council of 22 October2013 on the rightof accessto a lawyerin criminal proceedings OJ 2013 L Directive 2013/48/EU 294,p 1.

9. of the European Parliamentand of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of inno- Directive (EU) 2016/343 cenceandoftherighttobepresentatthetrialincriminalproceedingsOJ2016L65,p 1.

10. of the European Parliamentand of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused Directive (EU) 2016/800 personsincriminalproceedingsOJ2016L1322016,p 1.

11. of the European Parliamentand of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal pro-

Directive (EU) 2016/1919 ceedingsOJ2016L297,p 1.

12. E. Sellier and A. Weyembergh, ‘Introduction’, in E. Sellier and A. Weyembergh (Eds.), Criminal Procedures and Cross-Border Cooperation intheEU Areaof CriminalJustice,Editions del’UniversitédeBruxelles,2022,16.

Yet, these directives did not emerge in a vacuum. Procedural rights were already safeguarded in national legal systems and the European Convention on Human Rights As such, the directives must nd their place in this multi-layeredcontextandforgetheirownidentitywhilealsorespectingtheothers.

In this special issue, we delve into what the directives have contributed to the protection of procedural rights in Europeandexploretheirinteractionswithotherlayersofproceduralrights.

IreneWieczorek’ s contribution illustrates how the adoption of the Directives represents a qualitative paradigm shiintheeldofEUcriminaljustice,inwhichtheEUhasbecomeaprimarypoliticalactorseingitsownindependent criminal policy agenda. is shi raises several constitutional challenges, given the fundamental rights’ sensitivenatureofcriminallaw

One of these challenges lies in the peculiarity of harmonisation of criminal procedural rules, as shown by MichelePanzavolta,whoarguesthatmoreaentionshouldbedevotedtothewayharmonisationis realised,inorder to safeguard the constitutional dimensions of criminal procedural rights and help in their practical implementation

NasiyaDaminova’ scontributionrevealsthattheDirectives,whileprimarilydesignedfortheEUlegalorder,have extended their relevance beyond it. Notably, the European Court of Human Rights, a longstanding protector of due process rights, has increasingly relied upon them in its case law, thereby fostering a certain coherence of dueprocessrightsacrossEurope.

Not only can the procedural rights Directives be relevant beyond the EU legal order, but they can also be relevant beyond criminal law. is is what Anna Mosna shows by analysing the D.B. v. Consob case, in which the Court of Justice extended the nemo tenetur principle to administrative punitive proceedings by relying on Articles 47 and 48 of the Charter. is raises questions of articulation with Directive (EU) 2016/343, which also protectsthisprinciple,butonlyinproceedingsthatarecriminalinnature.

We are happy and excited to celebrate together this almost anniversary and reect on the past while also looking aheadtothefuture!

1.DianeFromage,ProfessorofEuropeanLaw,UniversityofSalzburg,andAffiliatedResearcher,LawSchool,SciencesPo,Paris

2.GünterHerzig,AssociateProfessorofEuropeanLaw,UniversityofSalzburg.

3.PaulWeismann,AssociateProfessorofEuropeanLaw,UniversityofSalzburg.

The procedural rights directives as part of a broader paradigm shift in EU Criminal Law

Irene Wieczorek

Havingtraditionallyfocussedontherepressivesideofcriminallaw,theEU has lately expanded its regulatory action also to the protection of the rights of suspects and victims in criminal procedure adopting 7 Directives: the Directive on the right to interpretation and translation, the Directive on the right to information, the Directive on the right to access to a lawyer, the Directive on the presumption of innocence, the Directive on the right of children in criminal procedures, the Directive on the right to legal aid and theDirectiveonvictims'rights,andtheDirectiveonVictims'rights (2)

is contribution illustrates why these legislative developments initiatives do not only represent a broadening of EU action, in terms, but quantitative they are also a key building block of a paradigm shi for the role qualitative of the EU as a criminal justice actor at is a shi from a subsidiary policy actor to a primary one. Such a shi – it is here argued – is a constitutionally challenging, although a normatively necessary one, due to the fundamentalrightssensitivenatureofcriminallaw. (3)

e EU has long argued that its role as regulatory, and policy implementation, actor is that of a subsidiary 'helper' when Member States fail to address a certain problem, and that is normally the case when the phenomenon to be tackled has a transnational dimension Such an understanding for the role of the EU underpins for instance the key principle of subsidiarity (Article 5(3) TEU); or the contours of key EU competences such as thoseintheeldoftheinternalmarkettotheextentthatArticle114TFEU allows the EU to adopt legislation to build up a transnational market, something which national regulators cannot achieve by themselves. When the EU acquired policy competences in the criminal justice eld, a similar subsidiary model was initially followed. In Maastricht, and then Amster-

More recently, the EU has embraced a similar primary actor role in the eld of criminal justice, going from supporting cross-border cooperation, to seing an independent criminal policy agenda, also in areas that are not cross-border which national regulators could tackle by themselves

4-6EuropeanLawJournal27,2023,p 308-407.

1.AssociateProfessorinEULaw,DurhamLawSchool,UniversityofDurham.

2.elaerDirectivewasadoptedsubsequenttothe ,withtheintentionofenhancingtheproceduralrightsofvictims. BudapestRoadmapof10June2011

3. e arguments here developed are a summary of Irene Wiezorek, ‘ ’ , e emerging tole of the EU as a primary normative actor in the EU Area of Criminal Justice

dam, a clear focus was put on the EU stepping in as a subsidiary actor to support Member States in tackling crossborder crime, which they cannot counteract alone. is could be appreciated in the denition of competences, which were limited to regulating inter-states cooperation (Articles K 1 7 and K 1 9 TEU in Maastricht), and harmonising of crimes denitions in cross-border areas of crimes to support such cooperation (Article 29 TEU in Amsterdam); and in the seing up of agencies aimed at supporting inter-states cooperation such as Eurojust and Europol.

However, this subsidiary model for EU action failed to account for actual legislative developments. is rstly occurred more clearly in the eld of internal market, where the EU soon enough embraced a role as a primary actor, seing normative standards in areas which Member States were able to regulate by themselves (see e g. citizenship case law, consumer protection, purely internal situation case law ). More recently, the EU has embraced (4) a similar primary actor role in the eld of criminal justice, going from supporting cross-border cooperation, to seing an independent criminal policy agenda, also in areas that are not cross-border which national regulators couldtacklebythemselves Onecanappreciatethis inthelooseningofthelinkbetweenharmonisationofsubstantive criminal law and interstate cooperation (e.g. Article 83 TFEU wording, and in the DR and TS case ); the fa- (5) ding emphasis on the transnational nature of crimes within the preambles of directives harmonising denition of crimes ; the expansion of the scope of action of Eurojust, Europol, and the European Public Prosecutor Office, (6) which could potentially intervene in internal cases ; and more importantly for the purpose of this special issue, (7) in the adoption, and judicial interpretation, of the procedural rights directives. Article 82(2) TFEU, the legal basis on which the directives were adopted, envisages at rst sight a clear subsidiary role for the EU. It states that harmonisation of procedural rights is only justied to the extent that it facilitates mutual recognition in criminal maers having a cross-border dimension. However, there is no such emphasis on limiting the directives' scope of application to

4.SeetheexamplesprovidedinWieczorek,n1,p 384-385.

5. ,DRandTS(JoinedCasesC-845/19andC-863/19,EU:C:2021:864). JudgmentoftheCourtofJusticeof21October2021

6.Wieczorek,n1,p389etff.

7.LookattheanalysisoftherelevantlegalbasisinWieczorek,n1,p 394etff.

transnational cases in the preambles, or the texts of the instruments. And, in the Moro case, the Court of Justice conr- (8) med that the directive on the presumption of innocence can apply to internal situations. Admiedly, the Court's reasoning is based on the, arguably questionable, assumption that the EU regulating also internal situations helps building mutual trust and therefore mutual recognition Nevertheless, the ruling stands and is generalisable to the other procedural rights directives

Briey,withtheadoptionofthedirectives,theEUsetsanindependent fundamental rights agenda which reaches into Member States internal affairs even beyond the Charter, for whose application at least a tenuous connection with the scope of EU law is still required (Article 51 EU Charter, and Case Fransson (9)). is role as an independent normative actor goes far beyond the EU initial understanding as an enhancing platform forMemberStates'ghtagainstcross-bordercrime.

eEUshiingfromasubsidiarytoaprimarypolicyactorcan create . Firstly, interpreting the di- constitutional challenges rectives as applying also in internal cases can create tensions with the principle of conferral. Article 82(2) TFEU clearly speaks of regulating maers Moreover, also the cross-border respect of the principle of subsidiarity could be called into question. Indeed, the Amsterdam Protocol on subsidia- (10) rity refers to transnationality as one key, although admiedly not the only, criterion indicating need for EU action. Lastly, onecouldarguethatoverexpansionofEUharmonisationclashes with the respect of national diversity (Article 4(2) TEU). Going beyond formal respect of Treaty norms, excessive expansionofharmonisationalsoundesirablycompressesregulatory competition and therefore inhibits legal creativity. is rulesoutMemberStatestestingdifferentpolicyoptionswhich mightbebeerthanthoseproposedbytheEU.

e EU shiing from a subsidiary to a primary policy actor can create constitutional challenges

Limiting the application of the procedural rights directives to only cross-border cases risks of creating reverse discrimination, thus challenging the principle of equal treatment

Yet, it is argued the EU stepping in as a primary actor is a normatively necessary step. Limiting the application of theproceduralrightsdirectivestoonlycross-border casesrisksofcreatingreversediscrimination(nationals being worse off than mobile citizens), thus challenging the principle of equal treatment (Article 20 of the EU Charter). Admiedly, the argument could be made that mobile citizens, who are involved in cross-border cases, are more vulnerable than non-mobile citizens. ey would therefore deserve a higher level of protection such as, among others, an enhanced right to translation and interpretation. is argument has nonetheless a number of weaknesses.Firstly,thereisnotinEUlawatthemomentacleardenitionofwhatconstitutesacross-bordercase.And the laer could simply amount to a national case which includes a piece of evidence being found abroad. In this case, it is difficult to see how the suspect involved in a cross-border case would be more vulnerable. Secondly, national suspects could also be in an equally vulnerable position as foreign ones, if for instance they have a migrant background and have a limited command of their language of their country of nationality. In this case, both national and mobile citizens would deserve equal access to, among others, enhanced translation and interpretation facilities. In light of this, the risk of reverse discrimination for suspects and victims involved in cases dened aspurelynationalisarealone.

Whether the EU should concern itself with the problem of reverse discrimination is a recurring question. e Court has an agnostic, yet not granitic, position on this It somewhat tolerates it when it comes to the internal market, never having it fully ruled out in its case law. However, it was open to assess equal treatment between EU citizens and third country nationals (see part 171 Opinion on EU-Canada CETA Agreement ) National (11) constitutional courts have been more proactive, amending national law to prevent reverse discrimination in particularlysensitiveareasforfundamentalrights,suchasfamily (12)

It is submied here that in the eld of criminal justice reverse discrimination is less tolerable than in other areas such as the internal market, and that the EU should concern itself with it. is is rstly because rights-holders who are at risk of being discriminated, are more vulnerable, for instance they might be in detention; and secondly, because the rights at stake, of which mobile and non-mobile citizensmightexperiencevaryinglevelsofenjoyment,arefundamental rights, in some cases even absolute rights. is predicament is obviously very different from that of economic actors operating nationally who might benet from a more limited access to the market, and therefore have morelimitedenjoymentoftheireconomicrights.

11. onEU-CanadaCETAAgreement(EU:C:2019:341). Opinion oftheCourtofJusticeof30April2019

12. Elspeth Guild, Cristina Gortázar Rotaeche, and Dora Kostakopoulou (Ed.), , Martinus Nijhoff, e Reconceptualisation of European Union Citizenship 2014,p 179.

In the eld of criminal justice reverse discrimination is less tolerable than in other areas such as the internal market

Some critical reflections on the procedural rights Directives

Michele Panzavolta

1.Harmonisationofcriminalprocedurallaws

Harmonisation of the rules of criminal procedure under Article 82 TFEU is subject to stringent limits (different and arguably stricter than harmonisation of offences and sanctions under Article 83 TFEU). Such harmonisationisnotagoalinitself,itismeanttofacilitatemutualrecognitionofjudgementsandjudicialdecisions.ereason for such a cautious approach by the European Treaties lies in the fact that criminal procedure is an area of law closely connected to national sovereignty, but it is also an area where national traditions play a crucial role, togetherwiththenationalstructuresofthemachineryofjustice.

It is debated whether the European Union has so far taken these limits seriously enough, although it can hardly be said that the harmonisation of procedural rules has been overly far-reaching. As of today, the action of harmonisationoftheEUincriminalproceduremainlyrevolvesaroundtheRoadmapDirectives,whichledtotheadoption of several directives on the rights of suspects or accused in criminal proceedings – being the right to interpretationandtranslation,righttoinformation,righttocounselandlegalaid,rightofchildrenincriminalproceedings–andthefurtherdirectiveonthepresumptionofinnocence .Asidefromthedebateontheopportunity (2) to harmonise criminal procedure, the aention should also start focusing on the way in which harmonisation is achieved in the selected areas of criminal procedure, assessing critically the implications of the directives and reectingontherightmethodologyforseingcommonminimumrules.

2.Positiveaspectsofdirectives

ere are positive sides to the procedural rights directives. e most evident one is the enhancement of mutual trust between Member States Moreover, the procedural rights have not just codied some procedural rights, buttheyhavealsocodiedsomespecicapplicationsofthoserights.

For example, Directive 2013/48 on the right to counsel has specied the different components of that right. It expressly grants the possibility to consult with a lawyer before interrogations and other investigative acts (iden-

1. Professor of Criminal Law at Institute of Criminology (KU Leuven). is contribution is wrien in the context of the project DIGIRIGHTS (funded by the EuropeanCommission,Project:101056667—JUST-2021-JACC).

2. Resolution of the Council of 30 November 2009 on a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedingsOJ2009C295,p 1.

tity parades, confrontations and reconstruction of the crime scene), next to the possibility to have a lawyer physically present during those activities. Likewise, with regard to the right to be informed of procedural rights, Directive 2012/13 has claried that information must be given in writing in case of arrest, but also that the communication of rights should cover certain rights, and so on. e right to interpretation has been codied so as to include, among others, the communications between the lawyer and the client.

Ultimately, the directives prompted several changes in national laws,provingthatthereremainedgapsatnationallevelintheprotection of some basic procedural rights, such as those now harmonised by the Directives. ey have therefore also contributed toanoverallimprovementinthesafeguardingofthoserights

3.Harmonisingrightsasshrinkingrights?

Nonetheless, there are also some aspects of the harmonisation of procedural rights that can give rise to criticism and potential dangers,andwhichhavethusfarmostlybeenoverlooked.

First, codifying rights might lead to some stiffening in the interpretation of rights, with the risk that some limitations of the right introducedinadirectivemightinthelongrunbeconsideredasintrinsically embedded in the right. Also, the codication of rights can collide with the expansive nature of said rights Fundamental rights are normally conceived to be applicable in all areas where their safeguarding nature is needed. eir protection stretches –even implicitly – wherever it becomes necessary. is is not the caseofdirectives

Let us take the example of Article 3 of Directive 2016/343 is provision repeats the general principle of the presumption of innocence From said principle, scholars normally derive a large number of corollaries, even absent an explicit legal provision. Only some of these corollaries nd explicit recognition in the text of the Directive. It is not, therefore, surprising that some courts have raised questions as to whether the rule of Article 3 of

e directives prompted several changes in national laws, proving that there remained gaps at national level in the protection of some basic procedural rights, such as those now harmonised by the Directives

Codifying rights might lead to some stiffening in the interpretation of rights, with the risk that some limitations of the right introduced in a directive might in the long run be considered as intrinsically embedded in the right

Directive 2016/343 applies to a number of areas that are not directly addressed by the Directive but traditionally considered as governed by the presumption of innocence. In the case C-310/18, , the question Milev (3) was posed with regard to the decision to prolong pre-trial detention. In the case C-467/19, , the question concerned plea bargain. In case C- QR (4) 653/19, , the issue was raised with regard to the conditions for re- DK (5) lease from pre-trial detention e Court of Justice of the EU (CJEU) observed in these instances that ‘in the light of the minimal degree of harmonization pursued therein, Directive 2016/343 cannot be interpreted as being a complete and exhaustive instrument intended to lay down all the conditions for the adoption of decisions on pre-trial detention (6) ’ . Similarly, it held that the directivedoesnotgoverntheissueofpleabargainagreements.

It might be correct to state that the EU legislature did not envisage that all possible areas which (or could) fall under the purview of the presumption of innocence would be harmonised (although the CJEU seems in recent judgements more ready to nd implicit ramications of the directive’s provisions, see cases and ). Yet the point remains HYA and others (7) DD (8) that Article 3 is a valid provision of law that states a general principle of law – the presumption of innocence – which in its wording is equivalent to that enshrined in Article 48 section 1 of the Charter of Fundamental Rights, just like in many national constitutions (and in Article 6 § 2 of the ECHR). e Court of Justice of the EU is forced to adopt a minimalist interpretation of that principle in order to avoid the harmonisation process extending in uncontrolled ways to almost all areas of criminal procedure. is poses evident problems. First, such a minimalist interpretation of the principle of the presumption of innocence under Article 3 of the Directive couldhavetheriskofaenuatingtheprinciple,reducingthenumberofcorollaries and implications that interpreters have derived from the principle throughout the centuries (and against this risk the ‘non-regression’ clause – typical of procedural directives – might offer only partial relief). Secondly,andconsequently,itforcesinterpreterstodistinguishbetweenageneral principle of the presumption of innocence, as enshrined in constitutions and charters, and a specic provision of the presumption of innocence, as codied in the Directive, with the laer having a much narrower sco-

3. (Milev,C-310/18,EU:C:2018:732). JudgmentoftheCourtofJusticeof19September2018

4. ,(QRC-467/19,EU:C:2019:776). JudgmentoftheCourtofJusticeof24September2019

5. (DK,C-563/19PPU,EU:C:2019:1024). JudgmentoftheCourtofJusticeof28November2019

6.Milev,§47.

7. ,(HYA,C-348/21,EU:C:2022:965) JudgementoftheCourtofJusticeof8December2022

8. ,(DD,C-347/21,EU:C:2022:692) JudgmentoftheCourtofJusticeof15September2022

e Court of Justice of the EU is forced to adopt a minimalist interpretation of that principle in order to avoid the harmonisation process extending in uncontrolled ways to almost all areas of criminal procedure

While the codication of specic implementations of procedural rights in directives can have the positive effect of strengthening the protection of those rights, a general proclamation of rights in a directive may instead be counterproductive

pe (despite equivalent wording). e interpreter is, in other words, forced to differentiate between the concept of the presumption of innocence as dened in Article 6 § 2 ECHR and Article 48 CFREU (and in national constitutions)andtheconceptofthepresumptionofinnocenceasenvisagedinArticle3,Dir.2016/343.

e above example shows that while the codication of specic implementations of procedural rights in directivescanhavethepositiveeffectofstrengtheningtheprotectionofthoserights,ageneralproclamationofrightsin a directive may instead be counterproductive (as it can collide with equivalent proclamations of constitutional documentsandHRcharters).

4.Harmonisationandfragmentation.eexampleof‘digitalproceduralrights’

Another point is that harmonisation of procedural law (just like harmonisation in general) does not always –and only – create harmonisation. Procedural harmonisation is a much more complex process. While directives set some minimum common rules, they can also give rise to uncertainty and fragmentation is is because the codied rules could give rise to multiple interpretations, or because those rules are to be imported into national systems with different procedural and judicial structures, or also because the societal landscape could change e implementation of procedural rights in light of the new technological possibilities is a perfect example of thelaer

Whenthedirectivesgiveaproceduralright(translation,interpretation, assistance of counsel, presence at hearing/trial, etc ), does this right include digital applications and/or digital facilitation? For instance: does the right to an interpreter include the possibility to establish a connection remotely via a digital link? Can the right to interpretation or translation be offered by means of soware programmespoweredbyarticialintelligenceapplications?Similar questions could also be raised with regard to other rights, such as the right to counsel or to the right to be present at trial: can the right to consultation and assistance of counselbeofferedremotelyviaadigitallink,orcanitbereplaced by soware programmes? Is virtual presence of the defendantattrialequivalenttophysicalpresence?

When looking at the text of the procedural rights directives, these questions do not nd clear answers, principally because these digital issues are largely neglected by the European rules e procedural right directives do not offer a clear and uniform picture when it comes to digital applications (and they do not clarify whether and to what extent there can be an equivalence between the physical and the digital application of a procedural right). Directive 2012/13 on the right to information makes no mention, for example, of the possible use of technologies to enhance and/or protect this right. Likewise Directive 2016/343, when discussing the right of the accused to be present at trial, says nothing of the possibility to enact that right by means of videoconference or other similar digital alternatives. Directive 2013/48 on the right to counsel makes a shy reference to videoconferencing in the preamble (recital 23), although such digital arrangements should not be detrimental to the essence of the suspects’ rights. Directive 2010/64 on translation and interpretation contains a rather general provision in its Article 2 § 6, allowing the use of ‘communication technology suchasvideoconferencing,telephoneortheInternet”,aslongasthisdoesaffect“thefairnessoftheproceedings’.

While there are now some common minimum European rules concerning the aforementioned procedural rights in their classic form, the national approaches signicantly diverge as to the possibility by which recourse to new technologies can be made and the extent to which this should be allowed (see for a clear example of these divergences the Commission report on the implementation of Directive 2010/64 on interpretation and translation). e reticent approach of the European legislature coupled with the developments in the use of new technologies within criminal justice (particularly aer the Covid-19 pandemic) have given rise to a situation of fragmentation whichharmstheharmonisationgoalofthedirectives.

Harmonisation of procedural law (just like harmonisation in general) does not always – and only – create harmonisation

Evidence of the problems that such situation can create can be found inarequestforpreliminaryrulingrecentlyledbeforetheCJEU(Case C-760/22 of 28 November 2022) , where the referring court (9) asks, in essence, whether virtual presence at trial can be considered equivalent to physical presence and, if so, under what legal and practical conditions. e request shows the uncertainty surrounding the digital arrangements and the need for further harmonisation, demonstrating that harmonisation of procedural rights can easily call for more harmonisation. In this respect it is probably time for adoptinganewdirectivecoveringdigitalproceduralrights.

5.Concludingthoughts

Harmonisation of procedural laws facilitates mutual recognition not only in that it can reduce the cases of refusals, but also because it can allow judicial cooperation to function smoothly while ensuring the fair and just treatment of suspects and accused. Its positive effects should be more readily acknowledged, and the debate should partly shi its focus. e discourse on harmonisation in procedural law revolves mostly around the opportunity to harmonise (the latin an), while it is time to increase the focus on the way in which harmonisationisdone(thelatinquomodo)

A very basic guideline is that harmonisation of criminal procedural laws in directives should avoid general proclamation of rights, in that Directives should not replace the constitutional dimension of rights butratherhelpinthepracticalimplementationandprotectionofthoserights.Toavoiduncertaintyandfragmentationthelegislatureshall refrain as much as possible from using general, unspecic clauses. Moreover, harmonisation of directives requires constant monitoring, so as to ensure that rights are not too crystallised within old boundaries and also to check whether new integrations of harmonisedrulesarenecessary

Harmonisation of criminal procedural laws in directives should avoid general proclamation of rights, in that Directives should not replace the constitutional dimension of rights but rather help in the practical implementation and protection of those rights

The European Court of Human Rights on the ‘Stockholm’s Roadmap Directives’: the quest for a coherent application of ‘due process’ rights in Europe?

In 2009, the Council adopted a famous resolution on a ‘Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings’, which later became an integral part of the so–called ‘Stock- (2) holmprogramme’deningthekeydirectionsofthesubsequentmassivereformoftheEU’sAreaofFreedom,Security and Justice e need for a comprehensive set of the ‘ ’ guarantees was dened by the multi- (3) due process ple deciencies in this eld, demonstrated earlier by the wave of individual applications before the European Court of Human Rights (Strasbourg Court, ECtHR) against the EU’s Member States On the basis of Article (4) 82TFEU,6‘Roadmap’Directiveswereadopteduntil2017,withthetranspositiondeadlineswhichexpiredinJune 2019 at the latest Importantly, all Directives contain a strong Charter of Fundamental Rights of the European Union (CFREU) component, with a special emphasis on Title ‘Justice’ (Arts. 47-50) and Article 6 CFREU. Importantly, these guarantees correspond to those provided by the European Convention on Human Rights (ECHR, Convention), in particular the provisions of Articles. 6, 7, 13, Article 4 of Protocol No. 7 ECHR and Article5oftheConvention

While the ‘Stockholm Roadmap Directives’ remain EU Law instruments, and thus are aimed to be functional only in the Union’s legal order, more and more individual applications deriving from the implementation of these legal acts started to reach not only the Court of Justice of the European Union (CJEU, Luxembourg Court), but the European Court of Human Rights as well. Considering this background, the present contribution aims to shed light on the way(-s) the Strasbourg Court has used six ‘Stockholm Roadmap Directives’ in order to pro-

1. Postdoctoral Research Fellow (‘Just Recovery om Covid-19? Fundamental Rights, Legitimate Governance and Lessons Learnt (‘JuRe) project), Tampere University,FacultyofManagementandBusiness

2. , Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings OJC295.

3. ,OJC115. eStockholmProgramme—AnopenandsecureEuropeservingandprotectingcitizens

4. Lorena Bachmaier Winter, ‘New Developments in EU Law in the Field of In Absentia National Proceedings e Directive 2016/343/EU in the Light of the ECtHR Case Law’, or Stefano Ruggeri, ‘Participatory Rights in Criminal Proceedings A Comparative-Law Analysis from a Human Rights Perspective’, Chapters in Serena Quarocolo, Stefano Ruggeri (Eds.), Personal Participation inCriminal Proceedings: A ComparativeStudy of Participatory Safeguards and inabsentia TrialsinEurope,Springer,2019.

Nasiya Daminova1

1.eEU’s‘Stockholm’sRoadmapDirectives’:approachingtheStrasbourgCourt?

While the ‘Stockholm Roadmap Directives’ remain EU Law instruments, more and more individual applications deriving from the implementation of these legal acts started to reach not only the Court, but the European Court of Human Rights as well

vide an evolutive interpretation of the Convention. It will be argued that - since the European Union is currentlycomprisingthemajorityoftheCouncilofEuropeStates(27of46)-this circumstancecouldpotentially create a recursive issue of sorts. Even though all Directives contain specic clauses indicating their roots in/adherence to the ECHR guarantees, they also make the CFREU the main frame of reference for the LuxembourgCourt’sinterpretation.

ese two European Bills of Rights have developed in two different legal orders with overlapping but still distinct purposes. Moreover, they reect the standard of protection stemming from legal systems with different degreesoflegalintegration. GivensignicantlyhighernumberandthegreaterdiversityoftheCouncilofEu- (5) rope States, this standard is likely to be lower in the ECHR system than the one afforded by the European Union – hence the use of six Roadmap Directives by the Strasbourg judges can lead to unpredictable effects on the ECtHR’s jurisprudence. at being said, rstly, the author would like to propose a possible classication of the ECtHR’s references to the ‘Stockholm Roadmap Directives’. Secondly, the issues appearing in view of the growing number of individual applications before the Strasbourg Court with the ‘Stockholm Roadmap Directives’componentwillbediscussedbriey.

2. eECtHRvs.the‘Stockholm’sRoadmapDirectives’:typesofreferences

A research conducted on the ‘HUDOC’ website demonstrates that the ‘Stockholm Roadmap Directives’ are now frequently used by the Strasbourg Court – in cases involving the EU Convention signatories. For instance,

5. Steve Peers, Sacha Prechal, ‘Art 52 – Scope of Guaranteed Rights’, Chapter in Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (Eds.), e EU Charter of FundamentalRights:ACommentary,HartPublishing,2014,pp 1517-1518.

the ‘Access to a lawyer’ Directive 2013/48/EU has been referred to in 17 cases, the ‘Information’ Directive 2012/13/EU was mentioned in 11 cases, the ‘Presumption of innocence’ Directive 2016/343 was referred to in 5 cases, and the ‘Interpretation and translation’ Directive 2010/64/EU was mentioned in 5 cases. Conversely, the ‘Legal aid’ Directive 2016/1919 and the ‘Child suspects’ Directive 2016/800 still have not appeared in the ECtHR’s reasoning. is could be explained by the shorter period of time from the nal transposition deadlines for the laer acts (May and June 2019 respectively), as well as the potential sensitivity of the issues which the interpretationofthelaeractscouldtouchupon-suchasthevulnerabilityofthechildsuspectsorthenationalmargin of discretion in implementing the ECtHR’s ‘sufficient means’/ ‘interests of justice’ tests for the free legal assistance. It will be argued that this group of cases could be sub-divided into three categories: (1) the ‘technical’ references, (2) the indication of the shaping ‘European consensus ’ , and (3) the ‘sporadical’ references to the ‘Roadmap Directives’provisions.

2.1.e‘technical’references

Within the given context, it will be submied that this type of references is normally related to the factual circumstances of the case and paves the way to the Court’s assessment. In the vast majority of cases, ‘technical’ references appear in the ‘e Facts’, ‘Relevant Legal Materials’ as a part of the domestic or European Law, or ‘Merits’ sections as a part of the ‘e third party’ submissions - oen in conjunction with the pertinent CFREU provisions One could indicate that the ‘Information’, ‘Interpretation’, ‘Presumption of innocence’ and ‘Access to lawyer’ Directives were already discussed from this perspective, in order to provide an interpretation of Arts. 5 (‘Right to liberty and security’), 6 (‘e right to a fair trial’) and 13 (‘Right to an effective remedy’) of the Convention.

For instance, the ‘Access to a lawyer’ Directive was oen referred to in the ECtHR’s jurisprudence on the socalled doctrine – emphasising the crucial importance of the suspect's at the pre-trial sta- Salduz access to a lawyer ges of criminal proceedings (Article 6 ECHR) In this respect, this EU legal act appeared in Ibrahim, (6) Simeonovi, (7) Beuze (8) or lines of reasoning and, even though the Strasbourg judges tried to avoid providing substantive analysis of the Directive 2013/48/EU provisions, they seem to have had signicant impact on the cases’ outcome.Paradoxically,the -inspired‘Accesstoalawyer’Directive–alongwiththeStrasbourgCourt’sownpre- Salduz viousjurisprudence–wasinvokedforframingpossiblederogationsfrommaximumguaranteesofaccesstoalawyeronthepre-trialstagesofcriminalproceedingsstemmingfromtheearlier judgementSalduz (9)

6. , Ibrahim and Others v the United Kingdom (applications nos 50541/08, 50571/08, 50573/08 and

Judgment of the ECtHR of 13 September 2016 40351/092016,CE:ECHR:2016:0913JUD005054108,paras206-212,236,245,259,261,264,271).

7. ,SimeonovivBulgaria(application no.21980/04,CE:ECHR:2017:0512JUD002198004,para75).

JudgmentoftheECtHR of12May2017

8. ,BeuzevBelgium(application no 71409/10,CE:ECHR:2018:1109JUD007140910,paras72,82-86).

JudgmentoftheECtHR of9November2018

9.Inthissense,seeforexampleNasiyaDaminova,‘eEuropeanCourtofHumanRightsonthe‘AccesstoaLawyer’Directive2013/48/EU:theQuestforaCoherentApplication oftheRighttoaLegalAssistanceinEurope?’2EuropeanCriminalLawReview 11,2021,pp 211-241.

In the same vein, the ECtHR’s judges applied the ‘Information’ Directive (A T, Vizgirda, Zachar and Cierny) and (10) (11) (12) the ‘Presumption of innocence’ Directive (Ibrahim and Others, (13) (14) (15) (16) IliasPapageorgiou, Marinoni, Rigolio) ,whileinterpreting the scope of the right to a fair trial (Article 6 ECHR), and the ‘Interpretation and translation’ Directive (Ilias and Ahmed) – in order to clarify the scope of the guarantees (17) stemming from Articles 5 (‘Right to liberty and security’) and 13 (‘Right to an effective remedy’) ECHR While the proportionality tests developed in these lines of reasoning do not look as questionable as in the post-Salduz ECtHR’s case-law, the Strasbourg Court seems to have followed the lowest level of the guaranteeprovidedbytheseEUDirectives.

2.2.Indicationofthe‘Europeanconsensus’

It could be submied here that the Strasbourg Court also started approaching the ‘Stockholm Roadmap Directives’ to determine the so-called ‘European consensus ’ . is interpretative technique was summarised in the famous Demir and Baykara v. Turkey case as an analysis of elements of international law other thantheConventionandthepracticeoftheEuropeanStatesreecting their common values – which demonstrate continuous evolution international in the norms and principles applied in law or in the domestic law majority of member States of of the the Council of Europe (18) . e ‘Interpretation and translation’, ‘Information’, ‘Access to lawyer’ and the ‘Presumption of innocence’ Directives have already appeared in the ‘Relevant Legal Materials’, the ‘Merits’ sections of the judgements or in the Separate Opinions (concurring or dissenting), when the Strasbourg Court was asked to provide an interpretation to Article 6 (‘erighttoafairtrial’)ECHR.

Paradoxically, the Salduz-inspired ‘Access to a lawyer’ Directive was invoked for framing possible derogations from maximum guarantees of access to a lawyer on the pre-trial stages of criminal proceedings stemming from the earlier Salduz judgement

e Strasbourg Court also started approaching the ‘Stockholm Roadmap Directives’ to determine the so-called ‘European consensus ’

10. ,A T v Luxembourg(application no 30460/13,CE:ECHR:2015:0409JUD003046013,paras37,53,80).

JudgmentoftheECtHR of09April2015

11. ,Vizgirdav Slovenia(application no 59868/08,CE:ECHR:2018:0828JUD005986808,paras58-60).

JudgmentoftheECtHR of28August2018

12. , Zachar and Čierny v Slovakia (applications nos 29376/12 and , CE:ECHR:2015:0721JUD002937612,

Judgment of the ECtHR of 21 July 2015 29384/12 para49).

13.JudgmentoftheECtHR,IbrahimandOthersv theUnitedKingdom,paras213-215.

14. ,IliasPapageorgiouv Greece(application no.44101/13,CE:ECHR:2020:1210JUD004410113,paras26-27).

JudgmentoftheECtHR of10December2020

15. ,Marinoniv.Italy(application no.27801/12, CE:ECHR:2021:1118JUD002780112,para26.

JudgmentoftheECtHR of18November2021

16. ,Rigoliov Italy(application no 20148/09,CE:ECHR:2023:0309JUD002014809,para61).

JudgmentoftheECtHR of9March2023

17. ,IliasandAhmedv Hungary(application no 47287/15,CE:ECHR:2017:0314JUD004728715,para47.

JudgmentoftheECtHR of14March2017

18. ,DemirandBaykarav Turkey(application no 34503/97,CE:ECHR:2008:1112JUD003450397,para86).

JudgmentoftheECtHR of12November2008

For instance, the famous case is one of the rst occasions where the ECtHR referred to the ‘Interpretation Knox and translation’ Directive as a key pertinent act of EU Law, indirectly applying it as a criterion of the newly shaped consensus on the scope of obligation to provide interpretation in criminal trials among the majority of the ECHR signatories. It could be the specic factual background – requiring the analysis of the natio- (19) Directive’s nal implementing measures in the light of Article 6 of the Convention – and the high publicity surrounding the trial which instigated the Strasbourg Court to list Articles 1-2, 5-6 of Directive 2010/64/EU as an additional source of authority to support the legitimacy of the judgment Even though the said provisions did not appear in the ‘Merits’ section as the ECtHR preferred to base their reasoning on the Court’s own previous jurisprudence ( ), they seem to have had a signicant impact on the case outcome, namely establis- Hermi, Mantovanelli, Baytar hing a breach of Article 6(1) and (3) of the Convention in regard of the applicant’s right to the assistance of an interpreter (20)

Moreover, the Separate Opinions of the judges have also convincingly demonstrated the signicant potential of the ‘Access to a lawyer’ Directive for the evolutive Convention’s interpretation. e separate opinions in Simeonovi (21) Beuze (PDO Sajó, Lazarova-Trajkovska, Vucinic) and (JCO Yudkivska, Vucinic, Turković and Huseynov) deserve special aention – as they reect fully the critique revolving around the de demise (22) facto Salduz in these cases. By relying on the ‘new’ procedural guarantees stemming from Directive 2013/48/EU, they seem totransmitastrongmessagetothenationalauthorities–whoarestillallowedtoprovideahigherleveloftheguarantees on the basis of Article 53 of the Convention while regulating the access to a legal assistance on the pretrialstagesofcriminaltrial(i.e.inharmonywiththeprinciplesoftheearlierSalduzjudgment).(23)

Just like with the ‘technical’ references, the more resent ECtHR’s case-law referring to the ‘Information’ (Strassenmeyer (24) Correia De Matos, (25) Doyle, (26) Lalik (27) ) , ‘Access to lawyer’ ( ) and the ‘Presumption of innocence’Directives( ) asthecriterionofthe‘Europeanconsensus’inthe‘LawoftheEuropeanUnion’orthe Mucha (28) ‘Merits’ sections indicate the growing impact of the ‘Stockholm Roadmap Directives’ on the Strasbourg doctrines. At the same time, the balancing tests adopted in these lines of reasoning also demonstrate the adherence to the suggested by the laer acts, and - presumably - the lack of intention to limit the margin of dis- lowest standard cretion of the Council of Europe states in their choice of the national implementing measures in these sensitive areas.

19. ,Knoxc.Italy(application no 76577/13,CE:ECHR:2019:0124JUD007657713). JudgmentoftheECtHR of24January2019

20.JudgmentoftheECtHR,Knoxc.Italy(paras106-107).

21. Judgment of the ECtHR, Simeonovi v Bulgaria, Application no 21980/04, Judgement 12 May 2017, Partly Dissenting Opinion of Judges Sajó, LazarovaTrajkovskaAndVučinićjoinedbyJudgeTurković(‘edefencerightsoftheapplicant’Section -withthepertinentreferences).

22.JudgmentoftheECtHR,BeuzevBelgium,JointConcurringOpinion ofJudgesYudkivska,Vučinić,TurkovićAndHüseynov(paras26-27).

23.JudgmentoftheECtHR,BeuzevBelgium,JointConcurringOpinion ofJudgesYudkivska,Vučinić,TurkovićAndHüseynov(para26).

24. ,Strassenmeyerv Germany(application no 57818/18,CE:ECHR:2023:0502JUD005781818,paras36,39,57,96).

JudgmentoftheECtHR of2May2023

25. ,CorreiaDeMatosv Portugal(application no 56402/12,CE:ECHR:2018:0404JUD005640212,paras79-80,136).

JudgmentoftheECtHR of4April2018

26. ,Doylev.Ireland(application no.51979/17,CE:ECHR:2019:0523JUD005197917,paras47,59-61).

JudgmentoftheECtHR of23May2019

27. ,Lalikv Poland(application no 47834/19,CE:ECHR:2023:0511JUD004783419,paras32,40).

JudgmentoftheECtHR of11May2023

28. ,Muchav Slovakia(application no 63703/19,CE:ECHR:2021:1125JUD006370319,paras31-36).

JudgmentoftheECtHR of25November2021

2.3.e‘sporadical’references

It will be suggested that the ‘sporadical’ mentions to the ‘Stockholm Roadmap Directives’ have lile or no impact on the Court’s reasoning and the case outcome. In these cases, these EU Law acts are referenced not independently, but as a part of another pertinent legal text which is being analysed substantively by the Strasbourg judges. e most telling example of such ‘sporadical’ reference is proposed by the G.I.E.M. case where the Grand Chamber considered the issue of the conscation of land as provided for by Italian Law in the event of unlawful sitedevelopment–inlightofArticle7ECHR(‘nopunishmentwithoutlaw’).(29)

Whileprovidingadetailedandwell-balancedjudgement,theStrasbourgCourthasmentionedthe‘Information’ and ‘Access to a lawyer’ Directives in the ‘European Union Law’ section - as a part of the legal text in question, namely the Directive 2014/42/EU on the freezing and conscation of instrumentalities and proceeds of crime in the European Union In para. 153, the ECtHR cites Article 8 of the said Directive (2014/42/EU), in order to elaborate on the EU’s safeguards available to the parties in this type of : ‘…7. Without prejudice to Directi- litigation ve 2012/13/EU and Directive 2013/48/EU, persons whose property is affected by a conscation order shall havetherightofaccesstoalawyerthroughouttheconscationproceedings…’.(30)

is ‘ ’ reference to the ‘Information’ and ‘Access to a lawyer’ Directives was repeated in the copy-paste sporadical mannerinthemorerecent ,wheretheStrasbourgjudgeswereagainaskedtoruleontheforfeitureofalle- Todorov ged proceeds of crime in light of Directive 2014/42/EU within the Bulgarian legal context Even though in (31) this case the applicants’ complaints were based on Article 1 of Protocol No. 1 to the Convention, the similarity of thereasoningcouldpossiblydemonstratethestabilityofthe lineofargument G.I.E.M.

29. , G I.E.M S.R L and Others v Italy (applications nos 1828/06 and 2 others, CE:ECHR:2018:0628JUD000182806, Judgment of the ECtHR of 28 June 2018 paras7-87).

30.JudgmentoftheECtHR,G I.E.M S.R L andOthersv Italy(para153).

31. , Todorov and Others v Bulgaria (applications nos 50705/11 and 6 others, CE:ECHR:2021:0713JUD005070511, para Judgmentof the ECtHR of 13 July 2021 120).

e ‘sporadical’ mentions to the ‘Stockholm Roadmap Directives’ have lile or no impact on the Court’s reasoning and the case outcome

3.Conclusion

e rst references to the ‘Stockholm Roadmap Directives’ ‘ new’ procedural rights as an indication of the shaping International/EuropeanconsensusintheStrasbourgCourt’sreasoningseem to demonstrate their signicant potential for an ‘evolutive’ interpretationoftheECHR‘dueprocess’provisions. Importantly,insome cases it is rather tough to make a clear distinction between the ‘consensual’ and ‘technical’ assessment, as the ECtHR tends to avoid direct analysis of their provisions. Arguably, this approach might be explained by the Strasbourg Court’s willingness to avoid conicts with the parallel CJEU’s ‘Stockholm Roadmap Directives’ lines of argumentwithastrongCFREUcomponent

In particular, such newly emerged Luxembourg lines of reasoning could be mentioned in this regard as the ones related to the issues of the so-called ‘Rule of Law Backsliding’ in Hungary and Poland (IS, Prokuratura Rejonowa w Słubicach, WB), or the European Arrest Warrant enforcement (AB and Others, Spetsializirana prokuratura, Generalstaatsanwaltscha Hamburg) ese developments can presumably lead to the formation of ‘EU-specic’ procedural guarantees in these areas, which could be seen as upgrading the standards of protection articulated by the parallel developments in theECtHR’scase-law.

Importantly, the recent European Commission’s implementation reports indicated the issues with the Directives’ transposition not only in the EU Member States which have already been in the ECtHR’s radar (Belgium, Bulgaria, Hungary, Slovenia) but also –for instance - in Malta, Greece, Cyprus, Austria or Finland. erefore, one could argue that these ECHR signatories are exposed to the high risk of the new ‘Roadmap Directives-related’ applications not only to the Luxembourg Court but - quite likely - to the Strasbourg Court in the next few years. Given the res interpretata legal force of the ECtHR’s judgements, this could be potentially problematic for the non-EU Convention signatories criminal justice systems, being forced to follow the additional layer of procedural guarantees stemming from the EU legal order– which these states preferrednottojoin(or-liketheUnitedKingdom-toleave)

In some cases it is rather tough to make a clear distinction between the ‘consensual’ and ‘technical’ assessment, as the ECtHR tends to avoid direct analysis of their provisions

Roadmap beyond criminal law: what defence rights in administrative punitive proceedings?

1

Anna Mosna

Withitsdecisionin ,theCourtofJusticeoftheEuropeanUnionextendedthe prin- D.B.v.Consob(2) nemotenetur cipletoadministrativepunitiveproceedings WhilethisprincipleappliestocriminalproceedingspursuanttoDirective(EU)2016/343,theCourtextendedittoproceedingsthat, whileformallyconsideredadministrative,are criminal in nature relying directly on Articles 47 and 48 Charter It thus amended its traditional position, expressed in maers of competition law and known as the , insisting on an absolute duty to make infor- Orkem doctrine mation available for investigative purposes, refusal to answer being tolerated only where this would amount to a confession. A case in maers of market abuse, against a natural person and presented at a time in which the Charter is in force, presents some fundamental differences to the case and other competition D.B.v.Consob Orkem (3) lawcasesdecidedbytheCourt.

In , the Court offered a Charter-oriented interpretation of the applicable European Union (EU)

D B. v. Consob law on market abuse affirming that the principle applies, beyond admissions of guilt , (4) nemo tenetur stricto sensu alsotofactualquestionswhentheanswerwouldbecapableofestablishingaperson ’ scriminalliabilityortheirliability for an offence that is punishable with an administrative punitive sanction. Suggesting further, if not in the operative part of the decision, that even in purely administrative proceedings the respect of the is nemo tenetur crucial for the evidence obtained to be used in subsequent criminal proceedings (para 44), the Court echoed the jurisprudenceoftheEuropeanCourtofHumanRights.(5)

1. Assistant Professor of Criminal Law and Criminal Procedure, Leiden Law School; Research Fellow, KU Leuven. e research for this contribution is part of theNonIncrimInAProject(EUAFAction Grant,ProjectID:101060002).

2. ,D B vConsob(C-481/19,EU:C:2021:84). JudgmentoftheCourtofJusticeof2February2021

3.JudgmentoftheCourtofJusticeof18October1989,Orkem,(C-374/87,EU:C:1989:387).

4. of 28 January 2003 on insider trading and market manipulation, OJ 2003 L 96, p. 16, as Directive 2003/6/EC of the European Parliament and of the Council amended by Directive 2008/26/EC and Directive 2010/78/EU (now repealed) and Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse, OJ 2014 L173, p 1, as amended by Regulation (EU) 2016/1011, Regulation (EU) 2016/1033 and Regulation (EU) 2019/2115.

5. In its , Chambaz v Switzerland (application no 11663/04, CE:ECHR:2012:0405JUD001166304), the ECtHR extended the right judgment of 5 April 2012 to silence to anadministrative proceeding aiming at determining tax obligations of the personconcerned as this procedure wasconsidered indissolublylinked to other proceedings that were criminal in nature; Giulia Lasagni, ‘ ’ , Consob – e Court of Justice on the rightto remain silentin criminal maers (and beyond…) EULawLive,4February2021.

Deriving the application of the nemo tenetur in administrative punitive proceedings directly from the Charter, the decision in question paves the way for a general extension of defence rights

Deriving the application of the in administrative punitive proceedings directly from the Charter, nemo tenetur the decision in question paves the way for a general extension of defence rights originally conceived for suspects and accused persons in criminal proceedings. is seems to be conrmed in FNand others v Übernahmekommission (6) D.B.v.Consob , a case decided shortly aer , where the Court provided that decisions on administrative infringements cannot be binding in subsequent administrative punitive proceedings if the parties did not have the opportunityfullytoexercisetheirdefencerights,includingtheirrighttosilence.

While the adoption of a substantive concept of ‘criminal maer’ pursuant to the criteria allows to Engel/Bonda extend criminal law principles and safeguards to administrative punitive proceedings, arguably this broad interpretation of the concept in question does, however, not allow to extend the scope of application of Roadmap Directives to this laer eld. EU legislative competence regarding judicial cooperation under Article 82 TFEU is delimited by a formal notion of ‘criminal maers’ A substantive notion would progressively extend such competencebeyondtheboundariessetbythatprovision.

Article 82(2) TFEU provides for approximation of laws to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal maers having a crossborder dimension. Mutual recognition instruments adopted under Article 82(1) TFEU, such as the European arrest warrant or the European investigation order, may be issued only in proceedings that are formally criminal

6. ,FNandothersv Übernahmekommission(C-546/18,EU:C:2021:711). JudgmentoftheCourtofJusticeof9September2021

ordirectlyconnectedtosuchproceedings.Similarly,whileRegulation(EU)2018/1805 providesforthepos- (7) sibilityofconscationwithoutanalconviction,thisdoesnotplacetherelevantproceduresoutsideofwhatformally can be considered ‘criminal maers’, as they are triggered ‘following proceedings in relation to a criminal offence’. Recital 13 of the same Regulation explicitly excludes freezing orders and conscation orders that are issuedwithintheframeworkofproceedingsinciviloradministrativemaersfromitsscopeofapplication.

e Directives themselves identify their scope of application in criminal proceedings. Directives (EU) 2010/64, 2012/13 and 2013/48 do not apply to proceedings for the imposition of a sanction regarding minor offences by an authority other than a court having jurisdiction in criminal maers, but only to appeal proceedings before a court having jurisdiction in criminal maers, where such an instance is provided. Recital 11 Directive (EU) 2016/343 states that the Directive, including its provisions on the , should not apply nemo tenetur to administrative proceedings, including where these can lead to sanctions, and investigations by administrative authoritiesinrelationtosuchproceedings.

Hence, Roadmap Directives do not seem to apply in administrative punitive proceedings To the extent, however, that they codify the acquis in maers of defence rights resulting from the Charter, the ECHR and the case-law of the ECtHR, their substance is applicable also to such proceedings. Nevertheless, asymmetries in the protection of defence rights in criminal proceedings and administrative punitive proceedings are likely to persist As core defence rights applicable in criminal proceedings are codied in (more) detailed rules included in EU secondary law, they arguably provide for stronger protection and more legal certaintythangeneralprovisionsenshrinedintheCharterandinthe relevant case-law extending also to administrative punitive proceedings.

Moreover, as the Charter applies only where Member States are implementing Union law, the safeguards derived from the Charter have also a narrower scope of application than those included in the different Roadmap Directives. is may be irrelevant for market abuse cases since this eld is regulated by EU law. However suffice it to think of administrative proceedings for unfaithful tax return (for taxes other than VAT) or for construction infringements there are other types of administrative proceedings that fall outside the scope of Union law implementation and,thus,oftheprotectionoftheCharter.

Roadmap Directives do not seem to apply in administrative punitive proceedings. To the extent, however, that they codify the acquis in maers of defence rights resulting from the Charter, the ECHR and the case-law of the ECtHR, their substance is applicable also to such proceedings

Scope and content of defence rights in administrative punitive proceedings are thus not as clear-cut as they would be in criminal proceedings. Concerning the , it is for instance not clear nemo tenetur what the relationship between the right to silence and the privilege against self-incrimination is. Directive (EU) 2016/343 mentions right to silence and privilege against self-incrimination as two separate rights. e judgement, however, seems to subsu- D.B. v. Consob me both aspects under the concept of ‘right to silence’ (para 20) Further, the Court has extended the right to silence in administrative punitive proceedings also to factual questions, without elaborating on the actual scope of this laer concept. e Court merely specied that the right to silence cannot justify every failure to cooperate with the competent authorities, such as refusing to appear at a hearing or delaying tactics designed to postpone it (para 41). So, does the right to silence cover only oral statements on (however broadly intended) factual questions? Or would also the refusal to hand over documents be justied (at least) when this would equal anadmissionofguilt?

Dealing with the position of a natural person, the decision in is only of limited aid for assessing the D.B. v. Consob nemo tenetur for legal entities Directive (EU) 2016/343 explicitly excludes them from its scope of application, while an ECtHR judgment on the extension of the to legal entities has yet to be handed down. is nemo tenetur indicates a sensitive gap in the current protection of the in administrative proceedings, as it is not a nemo tenetur foregone conclusion that legal entities are accorded the same level of fundamental rights protection as natural persons.(8)

Protection standards may also vary depending on the fundamental right considered. is is particularly relevant for the Considering it as an aspect of the presumption of innocence and, as such, a precondition for nemotenetur and an expression of trial fairness is unlikely to lead to widely different conclusions regarding the need to gua- (9) rantee this principle, respectively, to natural persons and to legal entities. is might change where the nemotenetur is understood (exclusively) as a principle protecting the free will of the person concerned and their human dignity.(10)

2022,p 102.

9. ,Saundersv UK,(application no 19187/91,CE:ECHR:1996:1217JUD001918791,para68). JudgmentoftheECtHR of17December1996

10.AdvocateGeneralPikamäe’s inD B v Consob(C-481/19,ECLI:EU:C:2020:861,point99). Opinion of27October2020

8. Frank Meyer, ‘Unternehmenssanktionsverfahren und nemo tenetur-Schutz nach der EU-Grundrechtecharta’, Neue Zeitschri für Wirtschas-, Steuer- und Unternehmensstrafrecht,

Scope and content of defence rights in administrative punitive proceedings are thus not as clear-cut as they would be in criminal proceedings

is blurredpicturesuggeststhatfurtherreection,inresearchandcase-law,mustbedevotedtoestablishingthe conceptual and legal coordinates of defence rights, especially of the principle, and the degree of nemo tenetur theirapplicabilitytobothnaturalpersonsandlegalentitiesinadministrativepunitiveproceedings.Pursuingthis goal, studies like the one conducted in the context of the NonIncrimInA project, are topical and relevant to (11) contributetoclarifyingthecontoursoftheextensionprovidedbytheCourtin . D B v Consob

11. NonIncrimInA (EUAF Action Grant, Project ID: 101060002) analyses the concept and features of the nemo tenetur principle and assesses the way in which (some of) these features apply also in administrative and OLAF investigations in the aermath of the 2021 judgments in DB v Consob and in F N and others v Übernahmekommission

It is not a foregone conclusion that legal entities are accorded the same level of fundamental rights protection as natural persons

8 to 12 May 2023

Poland challenges EU's environmental regulations before the Court of Justice: officialpublicationinOJ

Monday 25 September

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e Republic of Poland took two separate legal actions against the European Parliament and the Council, contesting keyenvironmentalandscalregulationsenactedbytheEU.

General Court to rule on action for damages due to Commission's alleged lack of impartiality in national proceedings

Monday 25 September

Official publication was made of an action, before the General Court, whereby the applicant claims, principally, that the Courtshoulddeclarethatthedefendantisliableforthedamage caused as a result of the defendant’s interference in national judicial proceedings and order the defendant to compensate the applicant for such damage: Kargins v Commission (T-350/23).

Request for a preliminary ruling on the compatibility of EU immigration facilitation laws with the Charter of FundamentalRights

Monday 25 September

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e Tribunale di Bologna in Italy submied a request for a preliminary ruling to the Court of Justice of the European Union in a case involving OB, of Congolese origin, accused of facilitating the unauthorized entry of two minors into Italian territoryandpossessingfalseidenticationdocuments.

Preliminary ruling request on the compatibility of Polish Court composition withEUlaw,publishedinOJ

Monday 25 September

e Supreme Court of Poland submied a preliminary ruling request to the Court of Justice of the European Union in a case involving the compatibility of Polish national legislation with EU law, particularly with respect to the composition of a court panel hearing extraordinary appeals against nal judgments.

Counciladoptspositionsondesignprotectionlegislation

Monday 25 September

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e Council adopted its positions on the proposed revision of the designs legislation package, which includes a directive on the legal protection of designs and a regulation on communitydesigns.

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Monday 25 September

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A request for a preliminary ruling request, from the Helsinki Administrative Court (Finland), seeking clarication on the validity of certain provisions of EU secondary legislation, within the context of retransfer of allowances, paid by an undertaking to the Union Registry, due to non-compliance with the provisions of the Commission Monitoring Regulation, which were later found to be invalid by the Court of Justice, wasofficiallypublishedintheOJ:MetsäFibre(C-414/23).

e European Council issues decision establishing the upcoming compositionoftheEuropeanParliament

Monday 25 September

Court of Justice to clarify the notion of

ethnic origin’ in the context of redu-

social family housing in so-called ‘transformationareas’inDenmark

Monday 25 September

Official publication was made of a preliminary ruling request from the Østre Landsret (Denmark) on the interpretation of Article 2(2)(a) and (b) of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin: Slagelse Almennyige BoligselskabAfdelingSchackenborgvænge(C-417/23).

Commission takes decisive action to curb microplastic pollution and safeguardtheenvironment

Monday 25 September

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e European Commission adopted stringent measures aimed at limiting intentionally added microplastics in products governedbytheEUchemicallegislationREACH.

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e European Council adopted a decision on the composition of the European Parliament, which sets out the number of representatives in each Member State to be elected for the 2024-2029term.

CommissionblocksacquisitionofeTraveli by Booking over unaddressed competition concerns in the online travel agenciessector

Monday 25 September

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Under the EU Merger Regulation, the Commission has prohibited the proposed acquisition of eTraveli by Booking, which according to the Commission would have resulted in Booking strengthening its dominant position on the market for hotel online travel agencies in the European Economic Area.

‘

cing

Court of Justice to clarify the advertisement of herbal substances with health claims under Regulation (EC) No 1924/2006

Tuesday 26 September

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A preliminary ruling request from the Bundesgerichtshof (Germany) concerning the legality of advertising herbal substances, or "botanicals," with health claims and general wellbeing references under Regulation (EC) No 1924/2006, was officially published in the Official Journal: Novel Nutriology (C-386/23).

Court of Justice to clarify whether provision of German Law on Judges constitutesdirectagediscrimination

Tuesday 26 September

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Official publication was made of a preliminary ruling request, lodged on 6 June 2023, from the Karlsruhe Administrative Court, by which the Court of Justice is asked to clarify direct discrimination on the grounds of age, within the meaning of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation: Zetschek (C-349/23).

ECtHR: Violation of protection of propertyincaseconcerningforfeitureofassets alleged

Tuesday 26 September

Council and Parliament reach provisionalagreementonEMAfeesystemupdate

Tuesday 26 September

ePresidencyoftheCouncilandEuropeanParliamentnegotiators reached a provisional agreement to modernize the fee structure of the European Medicines Agency, which seeks to simplify and make the fee system more sustainable and exible.

Court of Justice streaming hearing today in case concerning the effect that the granting of refugee status by one Member State has on an application for international protection in another MemberState

Tuesday 26 September

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e Court of Justice’s hearing in Bundesrepublik Deutschland (Effet d’une décision d’octroi du statut de réfugié) (C-753/22), concerning a preliminary ruling request by which clarication is sought in regards to the binding effect that the granting of refugee status by one of the Member States has on the review of an application for international protection by another Member State, was streamed on the Court ofJustice’swebsite.

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e ECtHR delivered its judgment in Yordanov and Others v. Bulgaria (Applications nos 265/17 and 26473/18), a case concerning the compatibility of certain provisions of the Bulgarianlegislation,whichprovidefortheforfeiturebytheState of assets alleged to have been unlawfully acquired, with, principally, the protection of property, as enshrined in Article 1 of ProtocolNo 1ECHR

EU identies Trinidad and Tobago as non-cooperating country in ght againstillegalshing

Tuesday 26 September

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e European Commission took a signicant step in the ght against Illegal, Unreported, and Unregulated (IUU) shing by identifying Trinidad and Tobago as a non-cooperating countryinthisendeavor,thusgivingthecountrya 'redcard’.

to have been acquired unlawfully

ECtHRstreaminghearingtodayofacase concerning an alleged violation of certain Convention rights due to health issues possibly caused by climate change

Wednesday 27 September

ehearingoftheEuropeanCourtofHumanRights,siingin its Grand Chamber formation, in Duarte Agostinho and Others v. Portugal and 32 Others (application no. 39371/20), a case concerning greenhouse gas emissions from 33 Member States, which, in the applicants’ view, contribute to the phenomenon of global warming resulting, among other things, in heatwaves affecting the applicants’ living conditions and health, was streamedontheECtHR’swebsite.

Court of Justice to rule on Polish judiciary independence in criminal convictionsenforcement

Wednesday 27 September

Official publication was made of four preliminary ruling requests from the Sąd Okręgowy w Warszawie (Poland) concerning the enforcement of criminal convictions in accordance with EU law whereby the referring court raises concerns about the composition of the Council for the Judiciary in Polandandtheindependenceofthereof

General Court annuls Commission's Decision on Spain's tax scheme for shareholdingacquisitions

Wednesday 27 September

EMA: Vacancy for Head of Legal Department

Tuesday 26 September

e European Medicines Agency published a vacancy for a senior professional and leader to be in charge of its Legal Department, currently comprising three offices: the Pharma Law and Support to Core Business Office, the General Affairs andAnti-FraudOffice,andtheLitigationOffice.

General Court: Valve, Steam, and ve video games publishers unlawfully partitioned the market of PC videogames by agreeing to engage in geo-blocking practices

Wednesday 27 September

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e General Court, siing in its Extended Composition formation, delivered its judgment in Valve Corporation v Commission (T-172/21), a case concerning an action seeking the annulment of a Commission decision, on the alleged grounds that the Commission commied errors of law and fact in ndingagreements/concertedpracticesinconnectiontotheapplicant’s engagement in geo-blocking practices in the PC videogamesindustry

2023 Report on the state of the Digital Decade urges collective action for digitaltransformation

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In nine cases brought before the General Court,the Commission's decision declaring Spain's tax scheme on the deduction for indirect acquisitions of shareholdings in foreign companiesasunlawfulwasannulled.

Wednesday 27 September

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e "State of the Digital Decade" report, which evaluates the EU's advancements across four key pillars: digital skills, digital infrastructure, digitalization of businesses (including AI adoption), and digitalization of public services, was published.

CourtofJusticeclariesrulesonrailinfrastructurecapacityallocation

ursday 28 September

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e Court of Justice delivered its judgment in Gargždų geležinkelis (C-671/21) clarifying the interpretation of Articles 45 to 47 of Directive 2012/34/EU establishing a single European railway area in a dispute concerning the allocation of public railway infrastructure capacity following application of thepriorityruleprovidedforinaprovisionofnationallaw.

Commission adopts Communication highlighting achievements and remainingbolenecksinbuildingamoreresilient, competitive, and sustainable Union

ursday 28 September

e Commission adopted a Communication, ahead of the informal meeting of EU Heads of State and Government taking place in Granada on 6 October, concerning the EU's open strategic autonomy and priority policy objectives in the years ahead.

Court of Justice dismisses antidumping appeal in Changmao Biochemicalv.Commission

Justice

ursday 28 September

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e Court of Justice delivered its judgment in LACD (C-133/22), a preliminary reference from the Federal Court ofJustice,Germany,concerningtheinterpretationoftheConsumerRightsDirectivetheSalesofGoodsDirective.

fringements

ursday 28 September

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Advocate General Szpunar delivered his Opinion in La Quadrature du Net and Others (C-470/21), a preliminary reference from the French Council of State, which was referred to the FullCourtbytheGrandChamberoftheCourtofJustice

ursday 28 September

e Court of Justice handed down its judgment in Changmao Biochemical v Commission (C-123/21 P), a case concerning an appeal following the General Court’s earlier judgment in Changmao Biochemical v. Commission (T-541/18), in which the appellant sought the annulment of Commission Implementing Regulation 2019/921 imposing an antidumping duty on imports of tartaric acid originating in China.

Court of Justice orders UK to pay € 32 million lump sum for failure to prohibit the use of marked fuel in private pleasureboats

ursday 28 September

e First Chamber of the Court of Justice rendered its judgment in Commission v United Kingdom (Fiscal marking of gas oil) (C-692/20) whereby it ordered the UK to pay a lump sum penalty of € 32 million for having failed to prohibit the use of marked fuel in private pleasure boats within the time limitprescribedbytheCommission

e term “ consumer guarantee” includes the consumer ’ s subjective satisfaction with the goods purchased, holds Courtof

AG Szpunar: EU law does not preclude the retention of civil identity data linked to an IP address in order to identify the perpetrators of online copyright in-

Court of Justice denitively dismisses Ryanair’s actions against aid measures toSASduringCOVID-19

ursday 28 September

eCourtofJusticedelivereditsjudgmentsincasesRyanairv Commission(C-320/21andC-321/21),concerningthecompatibility with EU law of two State aid measures, adopted by Denmark and Sweden, in favour of Scandinavian Airlines, in thecontextoftheCOVID-19pandemic

Commission takes action to ensure timely transposition of EU directives: leer of formal notice sent to 24 MemberStates

ursday 28 September

e Commission initiated infringement proceedings against 24 Member States that have not yet communicated measures to transpose ve EU directives pertaining to various elds, including justice, mobility, transport, public health, and the environment

AG Rantos: supplementary tax on tobacco products compatible with EU lawonexciseduties

ursday 28 September

Advocate General Rantos has delivered his Opinion in f6 Cigareenfabrik (C-336/22) concerning the compatibility of a supplementary tax on new tobacco products with the provisionsofEUlawonexciseduties.

AG Medina claries procedure to authorise the placement of plant protectionproductsonthemarket

ursday 28 September

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Advocate General Medina issued two Opinions in case PAN Europe (Closer) (C-308/22) and Joined Cases PAN Europe (évaluation des propriétés de perturbation endocrinienne) (C-309/22 and C-310/22), concerning the risk assessment carried out by Member States to decide whether or not to authorizeaplantprotectionproduct

AG Campos Sánchez-Bordona claries creditors’ right to compensation for earlyrepaymentofmortgageloan

ursday 28 September

Advocate General Campos Sánchez-Bordona issued his Opinion in VR Bank Ravensburg-Weingarten (C-536/22), concerning the creditor’s right to receive compensation for possible costs directly linked to early repayment of a credit agreementrelatingtoresidentialimmovableproperty.

EU-Japan Air Services Agreement published in OJ: enhancing air transport relations

Friday 29 September

e "Agreement between the European Union and Japan on certain provisions of agreements between Member States of the European Union and Japan for air services", published in the Official Journal, aims to establish a legal framework for air servicesbetweentheEUandJapan

Council agrees to extend temporary protectionforUkrainianrefugees

Friday 29 September

e Council agreed to extend the temporary protection for individuals who have ed Russia's war of aggression against Ukraine, extending the protection period from March 4, 2024,toMarch4,2025.

EDPB issues Guidelines on data transfersunderLawEnforcementDirective

Friday 29 September

eEuropeanDataProtectionBoardreleasednewguidelines aimed at clarifying the process of transferring personal data bycompetentauthoritiesofEUcountriestothirdcountryauthoritiesorinternationalorganizationsinthecontextoflawenforcement

ESA refers Norway to the EFTA Court for authorization requirement restrictingnancialundertakings

Friday 29 September

e EFTA Surveillance Authority decided to refer Norway to the EFTA Court over its incorrect implementation and applicationofEEAruleswhenseingupsubsidiariesinotherEEA Statesinthenancialsector

Commission approves Belgian scheme modifying capacity mechanism to safeguardsecurityofelectricitysupply

Friday 29 September

Under EU State aid regulations, the Commission approved modications to the Belgian capacity mechanism to safeguard security of electricity supply, which will make the capacity mechanism more cost-efficient in its daily operation, as well as more environmentally-friendly, with stricter carbon dioxide (CO2) emission limits to beer align with the EuropeanGreenDeal

Insights, Analyses & Op-Eds

Dependency without borders?: Judgment in Staatssecretaris van Justitie en Veiligheid (Mère thaïlandaise d’un enfantmineurnéerlandais)

by Hanneke van Eijken

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Op-Ed on the Court of Justice’s judgment in Staatssecretaris van Justitie en Veiligheid (Mère thaïlandaise d’un enfant mineur néerlandais) (C-459/20), which, according to the author, demonstrates the Court’s new directions regarding Article 20 TFEU in the context of balancing the interest of the child and the factors to measure dependency, within the meaning of thatprovision

Protectionoftheessentialsecurityinterests of the Member States: Contracts on printing of official documents – second round (C-601/21, Commission v theRepublicofPoland)

by Mee Ohm and Grith Skovgaard Ølykke

Re-using retained personal data under the ePrivacy Directive: Court of Justice claries limits in Case C-162/22 A.G. v Lietuvos Respublikos generalinė prokuratūra

by Laura Drechsler

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Analysis of the Court of Justice’s judgment in A.G. v Lietuvos Respublikos generalinė prokuratūra (C-162/22), which, according to the author, constitutes another non-conclusive piece of the eternal debate between the Court and the Member States on the exact conditions provided by EU law, specically the ePrivacy Directive, for the retention and access to communicationsdataatthetelecommunicationsproviders.

READ MORE ON

AnalysisoftheCourtofJustice’sjudgmentinCommissionvRepublic of Poland (C-601/21), a case concerning an infringement procedure led by the Commission due to the Polish law on public procurement exempting public service contracts for the production of certain documents, printed maer, stamps and markings from public procurement procedures, thus incompletely transposing Directive 2014/24 onpublicprocurement.

e Court’s Ruling in Volkswagen Italia: Revisiting the Principle of Ne Bis in IdemwithaPinchofResJudicata

by Annegret Engel and Xavier Groussot

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Op-Ed on the Court of Justice’s judgment in Volkswagen Italia (C-27/22), which, according to the authors, showcases the, relatively new in the case law of the Court of Justice, relationshipbetweenthenebisinidem andresjudicataprinciples

eFirearmsDirectivebeforetheCourt of Justice (again): Opinion in Défense Active des Amateurs d’Armes and Others(C-234/21)

by Niels Kirst

Op-Ed on the Opinion of Advocate General Campos Sánchez-Bordona in Défense Active des Amateurs d’Armes and OthersvConseildesministres(C-234/21),which,accordingto the author, suffers from a aw as it treats rearms holders differently, particularly due to the absence of a transitional arrangement for holders of semi-automatic weapons convertedtoringblanks.

EU Agencies: Shiing Paradigms of EU Administration

by Merijn Chamon

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Op-Ed, part of the Symposium on EU Agencies, concerning the EU agencies constituting a paradigm change in the administration of EU law due to the EU Treaties reecting the administrative governance setup of the European Economic Community in 1958, despite being excessively detailed for a constitutionalcharter

Clarifying time limits within the antidumping measures’ expiry review procedure (case T-126/21 Azot v Commission)

by Nicola Bergamaschi

Analysis of the Court of Justice’s judgment in Azot v Commission (T-126/21), which, as highlighted by the author, refers to general features and priorities of the anti-dumping discipline,seingabalancebetweenthem

by Marta Simoncini

Op-Ed, part of the Symposium on EU Agencies, concerning the Meroni doctrine and the rst case that the Single Resolution Mechanism (SRM) was applied to a credit institution in Europe,undertheEuropeanBankingUnion.

Let the Citizens come out of the market –Covid 19 Restrictions justied under fundamentalrightsstandards?AGEmiliouinNordicInfo

by Miguel del Moral Sánchez

Op-Ed on Advocate General Emiliou’s Opinion in Nordic Info (C-128/22), which, according to the author, is not only unique in addressing the restrictive measures to free movement of persons that Member States applied as a response to the Covid-19 pandemic but is equally relevant from the point of view of the analysis of the justications and the potential to align this fundamental freedomwiththecaselawinfundamentalrightsprotectedbytheCharter.

‘Live and let die?’ e Meroni doctrine in2023

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