As the new football season starts, lawyers and football fans alike eagerly awaitfortheoutcomeofwhatmaywellbethemostanticipatedCourtofJustice’s judgment of all time. At least, the most participated (certainly in terms of national governments observations at the hearing) I’m talking, obviously, of the case opposing the Superleague to UEFA, regarding the extent to which UEFA can use its market power to exclude from the market competing club competitions (such as the Superleague) to its European ChampionsLeague (2)
Yet,itispossible(nottosayprobable)thatthejudgmentbytheCourtofJustice will turn out to be just the rst half of a match whose second half will takeplacebeforeSpanishcourtsandmayactuallyrunintoovertimeattheEU political process. is Long Read, more than trying to anticipate what the actual judgment of the Court might be (and, as we will see, there are different viable alternatives that may all ultimately lead in a similar direction) is, instead, an a empt to caution the legal and sports community from jumping into de nitive conclusions from whatever judgment the Court will deliver and to argue for the political process to be prepared to step in to do whatislongnecessarytodoinsports(andfootballinparticular).
In fact, my core argument is that the best outcome we can expect from the judgment would be for it to trigger the EU political process to undertake a much-needed public regulation of sports. A regulation whose necessity courts have, in fact, long highlighted through their case law. e key issues that the Superleague and the ISU cases (to be decided at the same time) (3)
As the new football season starts, lawyers and football fans alike eagerly await for the outcome of what may well be the most anticipated Court of Justice’s judgment of all time
1.DeanCatólicaGlobalSchoolofLawandAdjunctProfessor,SchoolofTransnationalGovernance,EuropeanUniversityInstitute
Case C-333/21 Opinion of the issues surrounding this case see: Katarina Pijetlovic, EU Sports Law and Breakaway Leagues in Football Vienna, Springer, 2015 and De Wi e, F., & Zglinski, J (2022). eideaofEuropeinfootball. EuropeanLawOpen,1(2),286-315.
Case C-124/21 P Opinion December
raise are issues that courts can only start to address and are not in a position to fully and completely regulate, much less implement e best role courts can play, in that respect, is to alert, trigger and set the boundaries for the political process to intervene and regulate. is should have been clear by now. As it is not, let’s hope that the Superleague and judgmentswillmakeitso. ISU
At the hearing, one of the Court’s judges questioned the extent to which the position being argued by EU institutions and national governments would be the same if this was a case involving any other association of undertakingsgivingitselfthepowertodecidewhoelseentersitsmarket.Butwhenfootballisinvolvedsomehowthingsare different In a preface to a book celebrating the 30 years of the judgment, former Advocate-General in the Bosman case, Carl O o Lenz, stated, in an unusually candid way, that: ‘[i]n no other case in my career of almost 14 years at the Court have I been exposed to such efforts to take in uence on a case. e political in uence and power of footballcannotbeoverestimated’. (4)
Former Liverpool’s Coach Bill Shankly famously stated that ‘football is not a ma er of life and death, it’s more important than that!’. is case turns out to be, in substance, about the extent to which the importance of football (and sports) merit granting them a special treatment from EU free movement and competition law and, if so, what that special treatment should be. e Court has been clear in its case law that, while sport is not excluded from EU internal market rules, it does deserve a special treatment under those rules. e questions are on what basis, for whatpurposeandsubjecttowhichconditions.
is case turns out to be, in substance, about the extent to which the importance of football (and sports) merit granting them a special treatment from EU free movement and competition law
Much of the debate on the case, in the hearing and outside it, concentrated on two topics: (i) Are we in the presence of a restriction on competition by object or effect?; (ii) What is the role and legal effects of Article 165 TFEU, that recognises the European Sports Model? e divergences around these two questions hint at different preferences on how the case should ultimately be decided. A restriction by object is harder to uphold than a restriction by effect and the a ribution of direct effect to Article 165 (instead of treating it ‘simply’ as a programmatic provision addressed at EU institutions) can, prima facie at least, help to support the position of UEFA and FIFA.Ultimately,however,inmyopinion,theyendupnotbeingdecisive.
First, the restrictive effects on competition (whether inherent - by object - or factually established) can be justi ed, under certain conditions, if ancillary to the pursuit of certain legitimate objectives. As a consequence, even if UEFA’srulesandbehaviorwouldbequali ed(astheyprobablyshould) asarestrictionbyobjecttheycould (5) be accepted if ancillary to the pursuit of certain legitimate objectives. Second, these objectives have long been recognised in the case-law of the Court, independently of Article 165 TFEU erefore, even if one where to consider (as probably we should) that Article 165 is only a programmatic provision addressed at EU institutions, (6) that does not mean that the public interests it identi es cannot be of relevance. ey correspond to legitimate objectivesthatcan,undercertainconditions,justifyrestrictionstocompetitionandfreemovementrules.
In this respect the fundamentals of the approach adopted by the Court of Justice in its past case-law with regard to the regulatory power of sports governing bodies are likely to remain intact: such regulatory powers are subject to the scrutiny of EU competition and free movement rules which, however, accepts certain restrictions so long astheyarenecessaryforthepursuitoflegitimateobjectives
ere is a caveat to the case, however, that, Superleague much to my surprise, has been largely ignored. is is the rst case where the general power to license and regulate competing events acquired by at (‘selfa ributed’) by sports federations can be reviewed by the Court with respect to free movement rules and not only competition law. It is not like in where MOTOE (7) such power was held by the federation on the basis of a public delegation of such power. ere have been other cases involving the self-a ributed regulatory powers of sports federations. But they did not regard a general power to license and regulate an economic activity, including the power to decide who can exercise such activity
5. See, very persuasively, arguing that this should be treated as a restriction by object, Mavroidis and Neven comment on AG Rantos Opinion in Concurrences Nº122799,2023,p.1.
6. In this respect, my interpretation of Article 165 is closer to that endorsed by Advocate General Szpunar in his Opinion in , Royal Antwerp Football Case C-680/21 Club(9March2023)thantothatofAdvocateGeneralRantosinhisOpinion ontheSuperleague(op cit.).
7. , T-193/02, Laurent Piau v Commission of the European Communities, Judgment of the Court of First Instance (Fourth Chamber) of 26 January 2005 EU:T:2005:22.
is is the rst case where the general power to license and regulate competing events acquired by at (‘self-a ributed’) by sports federations can be reviewed by the Court with respect to free movement rules and not only competition law
and enter into that market. In the General Court was faced with this question but could only address it with Piau, respect to competition law since it was ‘simply’ reviewing a Commission competition decision. is did not preventtheCourt,however,fromstatingthat:
‘77 e very principle of regulation of an economic activity concerning neither the speci c nature of sport nor the freedom of internal organisation of sports associations by a private-law body, like FIFA, which has not been delegated any such power by a public authority, cannot from the outset be regarded as compatible with Community law, in particularwithregardtorespectforcivilandeconomicliberties.
78Inprinciple,suchregulation,whichconstitutespolicingofaneconomicactivityandtouchesonfundamentalfreedoms,fallswithinthecompetenceofthepublicauthorities.’
is differenceis notirrelevant Infact, whenitis theStatethatdelegatestheauthoritytolicensetoaprivatebody one can expect for such power to be given subject to certain conditions and to be exercised under a public framework aimed at guaranteeing that it will further the public interest and will remain publicly accountable What the Court has done in previous cases (in particular and ) was to review if the state legislation MOTOE (8) OTOC (9) which delegated such power to a private entity did satisfy those requirements. Instead,in a case such as the one of the (or ) the licensing power is a result of the market power hold by the private entity and is being Superleague ISU exercisedoutsidesuchpublicframework.
e Court will have to decide if to recognise such licensing and regulatory power assumed by at by private bodies even in the absence of a public framework delegating and regulating its exercise Even if it will, we should expect for such power to be subject to a higher degree of judicial scrutiny. is must include additional guarantees of compliance with the legitimate objectives that may justify such power, in a context where there is no public regulatoryframeworkdoingso.
It can be argued that it’s difficult to require UEFA, because of its supranational character, to have a pre-existing public delegation of such power and to act under such public framework On the other hand, being a supranational body or entity can’t exempt you from EU rules as long as you act in the EU internal market. Instead, the case can highlight that the EU should be the public authority providing for such delegation and public framework in the context of the internal market. It would certainly not be contrary to the case law of the Court for it to simply state, in this case, that, in the absence of a public delegation, an association of private undertakings could not, usingitsmarketpower,assumeitselfthegeneralpowertodecidewhoelsecanenterintothatmarketandexercise thateconomicactivity.
e case can highlight that the EU should be the public authority providing for such delegation and public framework in the context of the internal market
Still,itisfarfromcertainthatthiswillbeaddressedintheCourt’sjudgment.First,thisissue,anditsconsequentline of reasoning, was not argued by the parties before the Court. While that is not decisive under EU law, it is likely the Court reasoning will be focused on the framing of the case by the parties. Second, the Court might fear that such a decision, in a high pro le case such as this, could be (albeit wrongly) interpreted as giving precedence to market competition over the special character of sport. In fact, that would not be so. It would, instead, require the political process to decide whether to grant this power to sport federations and, if so, to regulate it. is might allow for the principle of self-regulation of sports governing bodies to be protected while subjecting it to a necessary degree of public supervision and accountability While the nal outcome might be the one sports actually needs,thepathtogetthere,throughsuchjudicialdecision,maybetoocontroversialforsome.
Inthelightoftheabove,andasmostscholarshaveanticipated,itismorelikelyforthejudgmenttofocusontherequirements put forward in MOTOE (albeit in uenced by the difference highlighted). In this case (in line with the OTOC case, outside sports) the Court of Justice accepted for the State to grant a power to license competing sport events to a sports federation so long as necessary for the pursuit of legitimate objectives and the criteria usedtoforsuchlicensingistransparent,objective,non-discriminatoryandsubjecttoindependentreview.
e rstissueregardsthereforethelegitimacyoftheobjectivespursued.Itseemsobvioustome,andresultsfrom the case law, that such objectives must regard both the recognition of such licensing power and how it is exercised. In other words, it is necessary to establish that the pursuit of the legitimate objectives requires granting such exclusive power to a private body and for such power to be exercised in a manner that respects and pursues such objectives It cannot be enough to claim to pursue such legitimate objectives It is necessary to determine if they areactuallypursuedbygrantingsuchexclusivepowerandhowsuchpowerisactuallyexercised.
e promotion of fairness, openness and integrity in sports competitions seems therefore to be the fundamental objectives that ought to guide the European Union actions in sports and, as a consequence, to legitimate, subject to proportionality, restrictions on free movement and competition rules
e Court has recognised, in its case-law, several legitimate objectives as grounds for justifying restrictions to free movement and competition rules arising from the exercise of the regulatory powers of sports organisations. Inthisrespect,independentlyoftheexactlegalnature that the Court may a ribute to Article 165 TFEU (as a ‘merely’ programmatic provision or having a kind of horizontal direct effect) it certainly is a valuable provision in helping to de ne some of those legitimate objectives as part of the so called ‘European Sports model’ is is described in Article 165 TFEU, in particular by reference to the promotion of ‘fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical andmoralintegrityofsportsmenandsportswomen’(para. 2). e promotion of fairness, openness and integrity in sports competitions seems therefore to be the fundamental objectives that ought to guide the European Union actions in sports and, as a consequence, to legitimate, subject to proportionality, restrictions on free movement and competition rules. Openness (a crucial aspect in the Superleague case) requires open leagues, organised with promotion and relegation of teams. But, in my opinion, it also requires for the EU to protect a system of multi-level leagues where the development of a pan-European league or leagues should not undermine the existence of national leagues. In addition, openness requires competitive balance. While competitive balance does not require openness (closed leagues may even have stronger incentives for competitive balance), openness requires competitive balance. A league with formal promotion and relegation rules but where those that remain at the top and those that keep being relegated are always the same is not really an open league Competitive balance is, therefore, instrumental to genuine openness. Such competitive balance is also required by fairness and integrity A competition is only fair if there is some competitive balance among the competitors and it only respectsintegrityifalleffectivelyplayunderthesamerules,including nancialrules.
e Superleague case should not, therefore, only involve assessing if the Superleague respects such objectives. e justi cation of the license and regulatory powers of UEFA as necessary to pursue these objectives requires assessing if UEFA competitions and rules actually pursue those objectives. e legitimate objectives must guide the criteria for authorising other events but also need to justify holding such power in the rst place. is is particularly so in the light of the risks of con ict of interest that recognising such power involves. ere is a clear risk that this power might be used to protect the commercial interests of sports federations instead of the pursuit of those legitimate objectives. As a consequence, it is crucial to assess if they are effectively pursuing those legitimate objectives. In other words, UEFA can only invoke such legitimate objectives to justify the power to license ot-
UEFA can only invoke such legitimate objectives to justify the power to license other competitions if its own competitions actually pursue those legitimate objectives
her competitions if its own competitions actually pursue those legitimate objectives It is not enough for UEFA to argue that its actions against the Superleague are guided by such objectives –EU law recognition of its licensing and regulatory powersis predicated on its own compliance with the same objectives. At the minimum,itissubjecttoarequirementofconsistency
It happens that there is much to put into question the extent to which UEFA is, in fact, successfully pursuing such objectives. Competitive balance and openness have been decreasing signi cantly in European football competitions (both in the Champions League and national leagues) and the rules governing UEFA’s Champions League favour some leagues and clubs over others, actually reinforcing the leagues and clubs which are more commercially successful. e degree of nancial solidarity derived from UEFA’s competitions revenues is also rather limited (in fact, paradoxically, the Superleague proposes to redistribute more money than the Champions League…). is, not to mention, that there are serious questions on the extent to which the commercial interests of UEFA and FIFA have gained precedenceovertheprotectionoffairnessandintegrityinsports. (10)
I don’t see how UEFA’s exclusive licensing power can be justi ed without assessing the compliance of UEFA’s own competitions with the legitimate objectives it claims to pursue to justify that power. If I am right, then there will be two crucial issues that will follow up to the Court’s judgment. e rst is that, this assessment, which is largely a ma er of evidence, will have to be done by the national court. is will make it even more likely for the actual outcome of the proceedings to depend, for the most part, on the nal analysis to be done by the national court. ough many are eagerly waiting for the Court’s judgment to decide who won and who lost I would be much more prudent e second issue is of a broader nature: one is bound to feel uncomfortable about leaving suchcomplexanalysis,whichalsoinvolvesdifficulttrade-offs,tobeexclusivelyle tothejudiciary.
In addition, the case exempli es how the judiciary might be limited in taking into account all the interests that ought to be considered in this analysis Neither UEFA nor the Superleague had an interest in promoting an indepth assessment of the extent to which the current model of the Champions League actually complies with the objectives a ributed to it UEFA obviously has no interest in that Nor does the Superleague because it is actually challengingsomeofthoseobjectivesthemselves.
10. I present detailed data on both the decrease in competitive balance and openness and the systemic failures in protecting fairness and integrity in EU Law and Sports: A Match Made in Heaven or in Hell? Forthcoming in e Internal Market Ideal: Essays in Honour of Stephen Weatherill Adams-Prassl, J., Bogojević, S., Ezrachi, A &Leczykiewicz,D (eds.).Oxford:OxfordUniversityPress See,inthesamesense,MavroidisandNeven,op cit.above
is further highlights the problems with placing all the burden in addressing these issues on courts e inaction of the political process in the sports economic arena could lead to recognising a general licensing and regulatory power on a private body absent an appropriate public framework regulating that power and the forms of scrutiny and accountability to which it ought to be subject. is is not a good outcome. In this context, the best hope we can have is for this case to trigger the EU political process to create such public framework. Without it, courts will increasingly be faced with an almost impossible choice between simply denying such broader regulatory and licensing powers to sports federations or authorising it without effectively being able, on a case by case basis, to develop such a public framework themselvesandeffectivelymonitoringandimplementingit.
e second set of requirements arising from the MOTOE caselaw regards the criteria to be used by private bodies in exercising such licensing power. Such criteria need to be, as mentioned, transparent, objective, non-discriminatory and subject to independent review. Both the Superleague and the ISU cases give the Court an opportunity to further develop the principles governing the application and monitoring of these criteria. is is particularly important in the light of the fact, discussed above, that, in these cases, the Court is not reviewing a public law a ributing and regulating the exercise of such power but the holding and exercise of such power by private bodies in the absence of such publiclaw.
One of the questions raised in both cases regards the extent to which, in order to be transparent and objective, the criteria need to be published in advance (which was not the case) or is it enough for there to be a consistent practice (and, if so, what is that practice and how should it be made transparent). ey also raise questions on the detail necessary for those criteria (the Commission – validated on this point by the General Court - asked in the ISU decision for much more detailed criteria than sports federations usually provide). e assessment of nondiscrimination is also particularly difficult in a context where sports governing bodies are deciding on the licensing of compe-
e best hope we can have is for this case to trigger the EU political process to create such public framework
titions that may be directly competing with those which they are organising themselves What if a private entity would propose to organise a new European Champions League that would respect the promotion/relegation rule and guarantee more redistribution and balanced competition than the current Champions League?AndwhataboutthearticulationbetweennationalandEuropean competitions? Furthermore, the issue of the relationship between such criteria and the institutional set up they may require from sports bodies is yet to be addressed. Does, for example, non-discrimination require for the licensing power to be exercised by a separate and independent body within the sports federations taking into account that any exercise of such power under a con ict of interest will always be suspect of discrimination? In other words, does compliance with such criteria also requires internal institutional remedies to be adopted by the sports bodies, at least if they would not be subject to an independent public regulator?
e requirement of independent review also requires further clari cations. Does the Court of Arbitration for Sports, the review mechanism available, under sports law, for the decisions of federations, meets the standard of such independent review? e compliance of the Court of Arbitration for Sports with the usual requirements of judicial independence and fair trial is (rightly in my view) contested by several scholars and has been increasingly under challenge before national courts and the European Court of Human Rights Will the Court use this case to clarify this question under EU law? e General Court, in its ISU judgment, recognises that the existence of an arbitration sports jurisdiction may be justi ed but did not assess its compliance with the standards of judicial independence and due process (fair trial) Will the Court do it and, if so, will the standard be similar to that employedinitscaselawontheruleoflaw?
It is important to note that this last question intersects with the assessment of the substantive criteria. In fact, we could argue that the more independent and compliant with the rule of law is the autonomous sports justice system the higher should be the degree of deference from European courts with regard to the rulings of that justice system, including in reviewing compliance by the sports federations with the substantive criteria imposed by EU law. e less that is the case the more national ordinary courts and the Court will continue to have to make suchreviewthemselves.
e compliance of the Court of Arbitration for Sports with the usual requirements of judicial independence and fair trial is contested by several scholars and has been increasingly under challenge before national courts and the European Court of Human Rights
At this point we have no idea of the extent to which the Court’s judgment may or not help to answer some of these questions But even if it will, these criteria will always leave a substantial margin of appreciation in their application to national courts. e analysis to be done by Spanish courts will therefore be decisive on the actual compliance of UEFA, and the sports justice system as a whole, with the criteria developed by the Court is raises two issues. First, a national judicial system will end up giving a nal answer on a ma er that involves a European wide sports competition It will do so under EU law but with a margin of appreciation that could lead to a very different answers in different national judicial systems. is will also risk creating a kind of forum shopping: those wanting to create new competitions will challenge the international sports federations refusals in the national judicial systems which will interpret the criteria developed by the Court in the more restrictive way of the powersofsuchfederations
Second, this also highlights the extent to which it is problematic, if not unrealistic, to expect for courts to properly continue to review the broad licensing and regulatory powers of sports federations outside a public framework establishing the boundaries of those powers and controlling that exercise. e Court of Justice (and courts in general) are not the best institutions to develop detailed regulatory criteria to address all the issues (and their trade-offs) raised by the exercise of those powers by sports bodies. Courts usually review such criteria and de ne thefundamentalprinciplesthatthepubliclegislationdevelopingthemoughttocomplywith.Buttheycannotbe expected to develop such public framework themselves and to monitor its enforcement by sports bodies. In the absence of such public framework it will also be difficult to guarantee a uniform implementation of such principlesthroughdifferentnationaljudicialsystems.
In this context one of three things will happen. A rst hypothesis is for courts to become extremely deferential to the licensing and regulatory powers of federations. ey would restate the general principles embodied in the case law but without actually reviewing in detail how they are being implemented by sports federations. However, it is extremely hard to argue that such deference is justi ed in a context where such federations are acting under a clear con ict of interests and where, moreover, they are not subject to effective independent scrutiny. Since their regulatory and licensing power (to authorise and regulate a competitor to themselves) is in con ict with their own commercial interests the minimum one should expect is for such power to be strictly reviewed. If that isnotdonebyapublicregulatoryauthorityitwillhavetobedonebycourts
A second hypothesis is for the burden of such in depth review to be le to national courts in applying the general principles developed by the Court. With respect to the exercise of the licensing power, for example, cases would bebroughtinthedifferentnationaljurisdictionsofestablishmentofthecompaniesorentitiesa emptingtocreatenewcompetitions.Itwouldthenfallonnationalcourtstoassesstheextenttowhichtheinternationalsportsfederations decisions rejecting such events complied with the general principles enunciated by the Court In the light of the open character of such general principles and the legitimate objectives they are linked to this would leave a broad margin appreciation to national courts e risk would be a possible lack of uniformity and the forumshoppingmentionedabove.
e third hypothesis would be for the Commission to step in and increase its regulatory oversight on sports federations and their licensing and regulatory powers. e Commission has, so far, been rather reluctant to intervene in sports (most of the cases have been brought by individuals and, in some instances, the Court, have actuallycorrectedinitsjudgmenttheEUlawassessmentpreviouslyexpressed by the Commission). Part of the reason may be that its (11) powers in this area are actually limited to competition rules It cannotbringactionsagainstsportsfederationsonthebasisoffreemovement provisions, for example is will always determine a limited oversightovertheregulatoryandsupervisorypowersofsportsfederations while the case law of the Court makes clear that such oversightrequiresconsideringotherrules,notablyfreemovement.Inaddition, the Commission enforcement powers under competition law are not enough to allow it to analyse different alternative models of organizing sports competitions and the trade-offs they involve. In my view, any appropriate regulation of this area requires such a comprehensive approach. e question is if this is le to be done by the sportsfederationsandwithorwithoutappropriatepublicoversight.
e decision to be taken on the authorisation of sports competitions should not be a discrete choice but should, instead, include an analysis of the trade-offs involved in different alternatives in the (12) light of the different objectives pursued and recognised under EU law, both those of competition and free movement rules and those re ected in provisions such as Article 161 and the European Sports model. In the light of the above, I see no be er alternative than the development of a European public framework for sports regulation (that may or not involve the creation of a sports independent regulatoryagency). (13)
e Commission enforcement powers under competition law are not enough to allow it to analyse different alternative models of organizing sports competitions and the trade-offs they involve
Itis impossibletoknow,atthis stage,ifthejudgmentsinthe and casesmaycreatethemomentum Superleague ISU for the necessary political action at EU level. So far, the EU political process has demonstrated extreme resistance todevelopthepublicregulatoryframeworkofsportsthatisneeded. isissoeveninthefaceofmultiplyingscandals that highlight the extent of the systemic problems faced by sports organisations. e most likely is for the (14) EUpoliticalprocess,absentajudgmentoftheCourtchallengingthecurrentstatusquo,totrytocontinuetoleave it to the Commission and the courts even if, for the reasons discussed before, they lack the appropriate legal instrumentsforwhatisnecessarytobedone.
One thing, no judgment of the Court will be the end of the story (or ‘match’). e judgment may challenge the current power of UEFA or may accept it but conditional on compliance with certain requirements to be reviewed by the national court. is means that, paradoxically, it may be the national judgment that will ultimately trigger action by the EU political process. Already a er the Opinion of Advocate-General Rantos on the case, the Spanish provincial court ruled favourably to the on the issue of interim relief measures To decide so, un- Superleague der Spanish law, it had to be convinced that the law is favourable to the Superleague. It did so, fun- prima facie (15) damentally on two grounds. First, that the creation of a new European competition, such as the Superleague, doesnot,initself,underminetheobjectivesoftheEuropeanSportsModel,notablybecauseitdoesnotimpacton the national leagues and does not prevent other competitions at EU level. Second, that, in any event, FIFA and UEFA are not in a position to guarantee those objectives, notably because they have a con ict of interest between securing those objectives and their own economics interests and, without being subject to the supervision and controlofanindependentpublicregulator,cannotbetrustednottogivepreferencetotheircommercialinterests.
No judgment of the Court will be the end of the story (or ‘match’). e judgment may challenge the current power of UEFA or may accept it but conditional on compliance with certain requirements to be reviewed by the national court
We should assume that the Court, even if accepting that the restriction of competition and free movement may be justi ed if ancillary, necessary and proportional to the pursuit of certain legitimate objectives, will leave a certain margin of appreciation to the national court to assess if that is so in the case before it. In this light, the decision of the Madrid provincial court gives a very good hint at how Spanish courts may make use of that margin of appreciation. Even a judgment that would closely follow the AG Rantos Opinion, which many would claim wouldmeanaUEFAvictory,maylaterturnouttobe,a erthenationalcourtjudgment,alossinstead…
A judgment contrary to UEFA could be received with fear of the consequences for European football. But it may actually be the trigger that is needed for the EU political process to nally step in to develop the public frameworkthatsportsregulatorypowersactuallyneed. ingsmayneedtogetworsebeforetheygetbe er
On 5 July 2023, the General Court dismissed two actions for annulment brought by the leaders of the Catalan ‘Self-determinationReferendum’, ,Mr.C.Puigdemont, Mr.A.Comín andMs.C.Ponsatí (the‘Cata- i.e. (2) (3) (4) lanleaders’),against:
i. a le er of 10 December 2019 of the President of the European Parliament (‘EP’) responding to their requestthattheEPdefendtheirMEPimmunitypursuanttoRule9oftheEPRulesofProcedure; and (5)
ii.theEP’sdecisionsof9March2021wavingtheirMEPimmunitypursuanttoArticle9,thirdparagraph,of ProtocolNo7TFEU. (6)
e judgments are relevant because they clarify numerous points of the EP’s procedures for the defence and the waiver of the MEP immunity, and remove the ‘last hurdle’ before surrendering the Catalan leaders to the SpanishSupremeCourt(‘SSC’),subjecttotheCourtofJusticecon rmingthejudgmentsonappeal.
1.DavidPérezdeLamoisanAssociateataninternationallaw rminBrusselsandholdsanLL M. inEULawandEconomicAnalysisfromtheCollegeofEurope (Bruges).
He has published contributions in EU competition law and constitutional law, including ‘Judicial Monologues on the Immunity of Members of the European Parliament: A Commentary to Junqueras Vies’, Revista Española de Derecho Europeo, No 73-74, January-June 2020 and ‘Mutual Trust, Procedural Autonomy and the Fundamental Right to a Tribunal Established by Law: Puig Gordi and Others Paves the Way for the Surrender of the Catalan Leaders’, Revista General deDerechoEuropeo,No60,May2023.
eviewsexpressedaremyownanddonotre ecttheviewsofmy rm.
2.Mr C PuigdemontwasCatalonia’sPresidentatthetime ofthedeclaration ofindependence
3.Mr A ComínwasCatalonia’sMinisterofHealthatthetime ofthedeclaration ofindependence
4.Ms C Ponsatí wasCatalonia’sMinisterofEducation atthetime ofthedeclaration ofindependence
5. , PuigdemontandComín(T-115/20, EU:T:2023:372);
EuropeanParliamentRulesof Procedure taryterm,July2023.
, 9 Parliamen- Judgmentof the General Court of 5 July 2023
6. ,PuigdemontandOthers(T-272/21,EU:T:2023:373); ontheprivilegesandimmunitiesoftheEu- JudgmentoftheGeneralCourtof5July2023
ProtocolNo7 ropeanUnion.
Long a er the organisation of the unconstitutional Catalan Referendum (1 October 2017), and the initiation (October 2017) and ‘consolidation’ (opening of the trial phase on 25 October 2018) of the ensuing criminal proceedings,Mr C PuigdemontandMr A ComínranascandidatesintheEPelections(26May2019)andwere elected MEPs (13 June 2019). Ms. C. Ponsatí became an MEP even later (1 February 2020) as a result of the UK’swithdrawalfromtheEU
On 17 June 2019, the Spanish Central Electoral Commission noti ed the list of MEPs elected in Spain to the EP, omi ing the names of Mr. C. Puigdemont and Mr. A. Comín because they had not taken the oath to respect the Spanish Constitution, as required by Article 224(2) of the Spanish Electoral Law By email of 10 Octo- (7) ber 2019, the Catalan leaders sent to the EP President a request for the EP to defend their MEP immunity pursuant to Rule 9 of the EP Rules of Procedure By le ers of 10 December 2019, the EP President replied to the request, , stating that the EP could not regard the Catalan leaders as MEPs without an official noti cation inter alia by the Spanish Central Electoral Commission in line with the MEP Electoral Act of 1976 (the ‘EP Le ers’). (8) eCatalanleaderschallengedtheEPLe ersbeforetheGeneralCourtinCaseT-115/20. (9)
e judgments remove the ‘last hurdle’ before surrendering the Catalan leaders to the Spanish Supreme Court, subject to the Court of Justice con rming the judgments on appeal
In the meantime, the Court of Justice handed down its ruling on 19 December 2019 in , where the Junqueras Vies Grand Chamber ruled that the national requirement to take the oath to respect the Spanish Constitution was not necessary to acquire the condition of MEP and thus enjoy immunity under Article 9 of Protocol No 7 TFEU. (10) In essence, the Court established, on the more reasonable side, that a candidate acquires the condition of MEP, and thus enjoys immunity, from the very moment and by the mere fact of being elected, i.e., without the need to comply with additional internal requirements, relying on a combined reading of Articles 2, 10(1) and 14(3) TEU and dimension of MEP immunity). On the more questionable side, the Court ruled in (temporal personal Junqueras Vies that, once a candidate becomes a MEP, it automatically enjoys protection against criminal proceedings without any (temporal) limits, , regardless of the fact that the criminal proceedings had been initiated i e long before the election of the Catalan leaders as MEPs, relying on Article 9, second paragraph, of Protocol No 7 andArticle343TFEU dimensionofMEPimmunity). (objective (11)
Accordingly, on 13 January 2020, the EP took note of the election of the Catalan leaders as MEPs. On the same day,theSSCrequestedtheEPtowaivetheMEPimmunityoftheCatalanleaderspursuanttoArticle9,thirdparagraph, of Protocol No 7 TFEU, which the EP granted by decisions of 9 March 2021 (the ‘EP Waivers’). e (12) CatalanleaderschallengedtheEPWaiversbeforetheGeneralCourtinCaseT-272/21 (13)
On 24 May 2022, the Vice-President of the Court of Justice temporarily suspended the effects of the EP Waivers until the nal outcome in the main proceedings before the General Court, thus overturning the Order of the (14)
Vice-President of the General Court of 30 July 2021, which had previously dismissed the Catalan leaders’ rst requestforinterimmeasures. FollowingtheGeneralCourt’srejectionofthe rstinterimmeasures,theCatalan (15) leaders made a second application for interim measures, which the Vice-President of the General Court equally rejected on 26 November 2021, leading the Catalan leaders to lodge a second appeal to the Court of Justice. (16)
Ultimately,theCatalanleaderswithdrewthesecondappealon22June2022inlightofthefavourableOrderof24 May2022oftheVice-PresidentoftheCourtofJusticeintheproceedingsconcerningthe rstapplicationforinterimmeasures (17)
JudgmentoftheCourtofJusticeof19December2019
10. ,JunquerasVies (C-502/19,EU:C:2019:1115).
11. David Pérez de Lamo, ‘ ’ , Revista Española de Derecho Europeo 73-74, Monólogos judiciales sobre la inmunidad de los miembros del Parlamento europeo 2020, pp 213-244 ( at EU Law Live); Paz Andrés Sáenz de Santa María, ‘ shorter English commentary Nadie es perfecto: el TJUE y el TS en el asunto de la leccióndeOriolJunquerasalParlamentoEuropeo’,RevistaGeneraldeDerechoEuropeo50,Editorial.
12.EuropeanParliamentDecisions , and of9March2021. P9_TA(2021)0059 P9_TA(2021)0060 P9_TA(2021)0061
13.SeeSection III below
14.
15.
16.
17.
OrderoftheVice-PresidentoftheCourtofJusticeof24May2022
OrderoftheVice-PresidentoftheGeneralCourtof30July2021
,PuigdemontandOthers(C-629/21P(R),EU:C:2022:413).
,PuigdemontandOthers(T-272/21R,EU:T:2021:497).
OrderoftheVice-PresidentoftheGeneralCourtof26November2021
OrderoftheVice-PresidentoftheCourtofJusticeof22June2022
,PuigdemontandOthers(T-272/21RII, EU:T:2021:834).
,PuigdemontandOthers(C-81/22P(R),EU:C:2022:594).
e EP Waivers are key because, in October and November 2019, following the SSC judgment sentencing the CatalanleadersthatremainedinSpain, theSSCissuedEuropeanArrestWarrants(‘EAWs’)againsttheCata- (18) lan leaders that ed to Belgium to escape the Spanish criminal proceedings. e Belgian courts suspended the execution of the EAWs issued against Mr. C. Puigdemont and Mr. A. Comín because they had become MEPs andthusenjoyedimmunity.However,theBelgiancourtsdidassesstheEAWissuedagainstMr.L.Puig,whodid not enjoy the same protection, and nally rejected its execution on 7 January 2021, mainly on the ground that the SSC was not the ‘competent judicial authority’ to issue the EAW and to rule on the merits of the case pursuant to Article 6(1) EAW Framework Decision (‘EAW FD’) Following this and other unjusti ed rejec- (19) tionsoftheEAWsbynationalcourtsinBelgiumandGermany, theSSCreferredaseriesofquestionsforpre- (20) liminary ruling to the Court of Justice regarding the interpretation of the possible grounds of refusal of a EAW by an executing judicial authority under the EAW FD. In , the Grand Chamber of the Puig Gordi and Others Court effectively found that the Belgian Courts’ refusal to execute the EAWs issued by the SSC against the Catalan leaders residing in Belgium was incompatible with several provisions of the EAW FD and the overarching principlesofmutualtrustandloyalcooperation. (22)
erefore, the EU Courts’ ruling on the validity of the EP Waivers should be the ‘last hurdle’ before surrendering the Catalan leaders to the SSC (subject to the execution of the SSC’s EAWs by the Belgian courts, adequatelyapplyingthejudgmentPuigGordiandOthers).
eEPLe ersArea‘Final’Act
e General Court rejected the EP’s plea of inadmissibility claiming that the EP Le ers were purely informative and an intermediate act. In particular, the General Court found that EP Le ers implicitly refused to an- (23) nounceintheEPtheCatalanleaders’requestfordefenceoftheirimmunityandtoreferthatrequesttotheCommi ee on Legal Affairs in line with the procedure laid down in Rule 9(1) of the EP Rules of Procedure. Such (24) conclusive wording could not be called into question by the EP Le ers invitation to the Catalan leaders to draw theirownconclusionsfromtheexplanationsoffered. (25)
18. (EnglishandFrenchtranslationsareavailable ). JudgmentoftheSpanishSupremeCourt2997/2019of14October here
19. of13June2002ontheEuropeanarrestwarrantandthesurrenderproceduresbetweenMemberStates CouncilFrameworkDecision2002/584/JHA
20.DanielSarmiento,‘ ’ ,DespiteourDifferences,11April2018. eStrange(German)CaseofMr.Puigdemont’sEuropeanArrestWarrant
21. ,PuigGordiandOthers(C-158/21,EU:C:2023:57). JudgmentoftheCourtofJusticeof31January2023
22. David Pérez de Lamo, ‘Mutual Trust, Procedural Autonomy and the FundamentalRight to a Tribunal Established by Law: Puig Gordi and Others Paves the Way for the Surrender of the Catalan Leaders shorter commentary ’ , Revista General de Derecho Europeo 60, 2023 ( at EU Law Live); see also Guillermo Íñiguez, ‘ ’ ,AgendaPública,1February2023. Losprincipios deLuxemburgoafavordelTribunalSupremo
23.JudgmentoftheGeneralCourt,PuigdemontandComín,paras39-47.
24.Ibid, para46.
25.Ibid, para42.
e General Court upheld the EP’s plea of inadmissibility claiming that the EP Le ers lacked binding effects visà-vistheSpanishauthorities. (26)
Previously, the EU Courts had held that a decision of the EP not to defend the immunity laid down in Article 8 of Protocol No 7 TFEU does not constitute an act producing legal effects. e General Court rejected the argu- (27) ment of the Catalan leaders that this case law could not be transposed to the request for the defence of the immunity laid down in Article 9 of Protocol No 7 TFEU. In this respect, the General Court distinguished (i) the (28) EP’s decision to waive the MEP immunity under Article 9 of Protocol No 7 TFEU, which is a contestable act because it has binding effects on the national competent authority requesting the waiver to continue the national proceedings, from (ii) the EP’s decision not to defend the MEP immunity under Rule 9 of the EP Rules of Procedure,whichinprincipleisnotacontestableactbecauseitselfhasnobindingeffectsonthenationalcompetentauthorities undertaking the legal proceedings, as the la er are responsible for ascertaining whether the facts alleged against the MEPs are covered by the immunity laid down in Article 9 of Protocol No 7 TFEU, and accordingly, to request the EP to waive it (subject to the EU Commission’s control of this binding obligation under Article 258 TFEU). Yet, the General Court accepted the EP’s nuance that, given the reference to national law laid down (29) inArticle9, rstparagraph,point(a),ofProtocolNo7TFEU,theEP’sdecisionnottodefendtheMEPimmunity under Rule 9 of the EP Rules of procedure may produce legal effects where national law confers the same powers on national parliamentary assemblies. However, the General Court rightly noted that neither Article 71 of (30) the Spanish Constitution, Articles 751 and 753 of the Spanish Code on Criminal Procedure, nor the relevant (31) Spanish case law conferred such powers on national parliamentary assemblies. Accordingly, the General (32) Court concluded that the EP Le ers were not a contestable ‘act’ under Article 263 TFEU in the present case and dismissedtheaction
e General Court’s nding appears to depart from the judgment Junqueras Vies, where the Court of Justice established that Article 9, second paragraph, of Protocol No 7 TFEU establishes an EU concept of MEP immunity based on Article 343 TFEU. e same reasoning may be applied to Article 9, rst paragraph, point (b), of Proto- (33) col No 7 TFEU, which is the correct limb, applicable in this case insofar as the Catalan leaders are ‘in the territory of any other Member State [than their own]’ (i.e., Belgium), and equally point (b), in contrast with point (a) of the same Article, does not refer to national law but appears to establish an EU concept of immunity. erefore, it
26.Ibid, paras48-89.
27. , Marra (C-200/07 andC-201/07, EU:C:2008:579), para 39; and Judgmentof the Court of Justice of 21 October2008
Judgmentof the Court of Justice of 6 September2011,Patriciello(C-163/10,EU:C:2011:543),para39.
28.JudgmentoftheGeneralCourt,PuigdemontandComín,paras59etseq.
29.Ibid, paras62-69.
30.Ibid, paras74-76.
31.RoyalDecreeLawof14September1882onSpanishCriminalProcedure
32.JudgmentoftheGeneralCourt,PuigdemontandComín,paras78-83.
33.JudgmentoftheCourtofJustice,JunquerasVies,paras76and81.
is possible that the Court of Justice may overturn the General Court’s nding, extending the EP’s powers under point (b) of Protocol No 7 TFEU based on an EU concept of immunity, if it follows the same maximalist interpretative approach that it took in Junqueras Vies when de ning the objective content of the concept of MEP immunityunderArticle9,secondparagraph,ofProtocolNo7 Inmyview,point(b)shouldbeconsideredases- (34) tablishing a minimum standard of protection, so as to ensure that MEPs can carry out their functions without interference when they are in the territory of another Member State than their own However, such de nition (35) cannot go as far as ‘constitutionalising’ the procedure of request for the defence of the MEP immunity on the basis of Rule 9 of the EP Rules of Procedure alone because, as the General Court noted elsewhere, the la er is merely a provision of secondary law that cannot disregard the limited text of Article 9 of Protocol No 7 TFEU and the resulting division of powers between the EU and its Member States, as well as the procedural autonomy (36) ofthela er.
It is possible that the Court of Justice may overturn the General Court’s nding, extending the EP’s powers under point (b) of Protocol No 7 TFEU based on an EU concept of immunity
e General Court rightly found that, in the absence of EU rules determining the competent authority to request the waiver of the MEP immunity pursuant to Article 9, third paragraph, of Protocol No 7 and Rule 9(12) of the EP Rules of Procedure, it is for Member States to designate that authority within their procedural autonomy.
(37) Accordingly, the Spanish Government had identi ed the SSC as the competent authority to request the waiver pursuant to Article 71 of the Spanish Constitution and Article 57 of the Spanish Electoral Organic Law, (38) (39) (40) which the Catalan leaders failed to adequately contest e General Court thus followed a very similar approach to the case law on the determination of the ‘competent judicial authority’ to issue a EAW under Article 6(1)EAWFD. (41)
eEPWaiversCannotInterferewiththeCatalanLeaders’FundamentalRights
e General Court clari ed that the MEP immunity is not a fundamental right, but an institutional guarantee in the interest of the proper and independent functioning of the EP erefore, the waiver of the protection in (42) itself cannot interfere with the Catalan leaders’ fundamental rights, such as their presumption of innocence, even ifthedecisionsadoptedunderthenationalproceedingsmayeventuallydo (43)
e General Court recalled that Article 9, third paragraph, of Protocol No 7 TFEU does not specify the conditionsunderwhichtheEPmustdecidewhethertowaivetheMEPimmunity,anddeferredtothesubstantivestandard set out in the EP Commi ee on Legal Affairs Notice No 11/2019, i.e., the EP must waive the immunity (44) unless it nds that there is fumus persecutionis insofar as ‘it transpires that the purpose of the national prosecution is to damage a Member’s political activity and thus the Parliament’s independence’ Ultimately, this standard (45) is objectively justi ed, beyond the EP Notice, because the MEP immunity is not a ‘personal privilege’, but an ins-
37.JudgmentoftheGeneralCourt,PuigdemontandOthers,paras77-80and85.
38. ,«BOE»núm.311. SpanishConstitutionof29December1978
39. of19JuneontheSpanishGeneralElectoralRegime,«BOE»núm.147. OrganicLaw5/1985
40.JudgmentoftheGeneralCourt,PuigdemontandOthers,paras81-89.
41.JudgmentoftheCourtofJustice,PuigGordiandOthers,paras86-88.
42.JudgmentoftheGeneralCourt,PuigdemontandOthers,para138.
43.Ibid, paras 138-142.
44. of19November2019,points41-44. EuropeanParliamentCommi eeonLegalAffairsNoticetoMembers0011/2019
45.JudgmentoftheGeneralCourt,PuigdemontandOthers,paras112-115.
titutional guarantee that solely intends to avoid interferences with the functioning of the EP For the same (46) reasons, the Spanish Constitutional Court also follows the fumus persecutionis standard. While the EU (47) Courts had previously limited the EP’s wide discretion to waive the MEP immunity (owing its political nature) on the EP’s compliance with the rules of procedure, material accuracy of the facts and the absence of manifest errors of assessment or misuse of powers, thus establishing a ‘control of legitimacy’, Puigdemont and Others v (48) EP endorses the fumus persecutionis standard for the ‘substantive control’ of the EP’s decision to waive the MEP immunity.
On this basis, the General Court found that the EP had not erred in waiving the immunity of the Catalan MEPs on the ground that the Spanish national criminal proceedings were clearly not linked to the duties of the Catalan leaders as MEPs, given that (i) the alleged offences had been commi ed in 2017, and the Catalan leaders were charged in March 2018, when their future status as MEPs (June 2019 and February 2020) was purely hypothetical; and (ii) the national proceedings also concerned other persons involved in the alleged offences who we- (49) renotMEPs. (50)
In this way, the General Court indirectly compensates for the excesses of the judgment , where the Junqueras Vies Court of Justice established that once a candidate becomes a MEP, it automatically enjoys protection against criminal proceedings, irrespective of the fact that the Spanish criminal proceedings were already at a very advanced stage ( , at the time of the election of the Catalan leaders as MEPs, the SSC had already closed the trial phase i.e. and the case was only pending nal judgment) and, therefore, it could be objectively ruled out that the purpose ofthecriminalproceedingswastointerferewiththecompositionorthefunctioningoftheEP. (51)
e possible way to reconcile the two outcomes in Junqueras Vies and Puigdemont and Others v EP is by understanding that, in the abovementioned situation, the elected candidate will still ‘nominally’ enjoy MEP immunity, even if the EP may be able to subsequently waive it based on the lack of fumus persecutionis, which could be objectively established if the criminal proceedings had been initiated long before the election of the MEPs. is contrasts with the Spanish system, where the parliamentary waiver would not be required in the rst place (a er the opening of the trial phase). In my view, the Spanish interpretation is more correct because the Court’s inter- (52)
46.See , 9 Parliamentary term, July 2023, Rules 6(1) and 5(2). As Fernando Santaolalla López explained in relation to European Parliament Rules of Procedure theSpanishMPimmunity(‘ ’ ,Dykinson2019,pp 135-136,freetranslation): DerechoParlamentarioEspañol
‘It should not be forgo en that this privilege arose historically to compensate for the precarious situation in which legislative assemblies found themselves in the face of the absolute powers wielded by governments. Once these circumstances were overcome with the consolidation of the rule of law and the consequent independence of the judiciary, immunity has become a historical vestige, criticised by the doctrine and censured by citizens, who have seen it used onnumerousoccasionstoletcriminalactsgounpunished. Arestrictiveinterpretation ofthisprivilegeshouldthereforebepostulated[…].’
47. (ES:TC:1992:206), Ground 3 and Judgment of the Spanish Constitutional Court 206/1992 of 27 November
Judgment of the Spanish Constitutional Court 90/1985of22July(ES:TC:1985:90),Ground6.
48. ,GollnischvParliament(T-346/11andT-347/11,EU:T:2013:23,paras 58-60). JudgmentoftheGeneralCourtof17January2013
49.Seetimeline inSection Iabove
50.JudgmentoftheGeneralCourt,PuigdemontandOthers,paras146-160and173-186.
51. David Pérez de Lamo, ‘ ’ , Revista Española de Derecho Europeo 73-74, 2020, Monólogos judiciales sobre la inmunidad de los miembros del Parlamento europeo pp 213-244.
52. (ES:TS:2000:9367); and Judgment of the Spanish Supreme Court of 19 December 2000
Judgment of the Spanish Supreme Court of 8 April 2007 (ES:TS:2008:687)
pretation easily lends itself to abuse, as it allows a person to run for election to avoid an imminent conviction, thus turning an institutional guarantee that must be applied strictly into a personal privilege. As the SSC eloquently noted in the national proceedings, (53)
‘[t]he requirement of legislative authorisation for the judiciary to complete criminal proceedings initiated more than a year ago, when the defendants were not elected deputies or senators, would mean subordinatingtheexerciseofjudicialpowertoaparliamentaryguardianship alien to the balance of powers designed by the constituent power ’ . Indeed, the need to request the waiver from the EP with (54) all the ensuing legal proceedings, where it is objective that there can be no fumus persecutionis, has caused a delay of justice lasting over sixyearsthathasservednointerestbutthatoftheCatalanleaders.
e General Court summarily dismissed the Catalan leaders’ arguments that the EP had unduly denied them of their rights to access documents and be heard But the Court examined in detail (55) (56) the Catalan leaders’ allegation that the procedure for the adoption of the EP Waivers had not been conducted impartially, thus infringingArticle41(1)CFREU. (57)
First, the General Court found that the appointment of a single rapporteur (Mr. A. Dzhambazki) for the (58) three immunity cases complied with the procedure laid down in Rule 9 of the EP Rules of Procedure and developed in the EP Notice No 11/2019. In particular, the principle of equal rotation of the standing rapporteur for (59) immunity cases, which are appointed for ‘each case’ by the EP Commi ee on Legal Affairs from among the (60) MEPs chosen by each political group, is compatible with the appointment of a single rapporteur for several (61) caseswheretheirsubjectma erisconnected. (62)
53. David Pérez de Lamo, ‘ ’ , Revista Española de Derecho Europeo 73-74, 2020, Monólogos judiciales sobre la inmunidad de los miembros del Parlamento europeo pp 213-244.
54. ,Ground2.2,freetranslation, rejectingMr JunquerasVies’pleathattheSSChadtorequesttheSpa- OrderoftheSpanishSupremeCourt5051/2019of14May nish Parliament to waive his immunity a er being elected MP in Spain before continuing with the ongoing criminal proceedings (see also Ground 2.6) (ES:TS:2019:5051A).
55.JudgmentoftheGeneralCourt,PuigdemontandOthers,paras194-210.
56.Ibid, paras211-218.
57.Ibid, paras 219-263.
58. ,EuropeanConservativesandReformistsGroup. MEPAngelDzhambazki
59.JudgmentoftheGeneralCourt,PuigdemontandOthers,paras229-238.
60. of19November2019,point8. EuropeanParliamentCommi eeonLegalAffairsNoticetoMembers0011/2019
61.Ibid, points6-7.
62.JudgmentoftheGeneralCourt,PuigdemontandOthers,para236.
e need to request the waiver from the EP with all the ensuing legal proceedings, where it is objective that there can be no fumus persecutionis, has caused a delay of justice lasting over six years that has served no interest but that of the Catalan leaders.
Second, the General Court rejected the Catalan leaders’ argument that Mr. A. Dzhambazki lacked impartiality insofar as he belonged to the same political group (VOX) who, along with Spanish Public Prosecutor’s Office and the State Counsel, had initiatedthenationalcriminalproceedingsagainstthem. No- (63) tably, the General Court found that the procedure and the adoptionofthedecisiontowaivetheMEPimmunityisinherentlypolitical in nature, so the fact that the rapporteur belongs to a political group whose ‘values and ideas could reveal sensitivities that are a priori unfavourable to the situation of the [MEP] concerned by the [waiver], has, in principle, no bearing on the assessment of the rapporteur’s impartiality’. Moreover, whatever (64) lack of impartiality may be alleged of the rapporteur, which the Catalan leaders did not sufficiently establish in the present case, this cannot automatically extend to (i) the whole Commi ee on Legal Affairs in charge of conducting the investigation phase of the waiver, whose composition re ects the political plurality of theEP; (ii)allMEPsoftheEuropeanConservativesandRe- (65) formists group to which VOX belongs; nor, may I add, (iii) (66) the whole EP chamber, which ultimately ‘adjudicates’ the ma er by holding a separate vote on the proposals put forward by the Commi ee on Legal Affairs, thereby deciding on the adoption ortherejectionofthewaivers. (67)
ird, the General Court summarily dismissed the Catalan leaders’ claim that the Chair of the Commi ee on Legal Affairs lackedimpartiality. (68)
As expected, the Catalan leaders immediately announced that they would appeal the judgments to the Court of Justice, which they reportedly lodged right before the deadline of 15 September 2023. Accordingly, the (69) (70) SSCpostponedtheactivationoftheEAWsagainstMr.C.PuigdemontandMr.A.ComínuntiltheCourtofJusti-
63.Ibid, paras 239-257.
64.Ibid, para 244.
65.Ibid, para 243.
66.Ibid, para 246.
67. ,9 Parliamentaryterm,July2023,Rule9(9). EuropeanParliamentRulesofProcedure
68.JudgmentoftheGeneralCourt,PuigdemontandOthers,paras258-263.
69.‘ ’ ,LaVanguardia,5July2023. PuigdemontreconocequeesperabaotrasentenciayanunciaquerecurrirálaTJUE
70.‘ ’ ,ElPaís,15September2023. LadefensadePuigdemontrecurriráestevierneslaretiradadesuinmunidadantelajusticiaeuropea
e principle of equal rotation of the standing rapporteur for immunity cases is compatible with the appointment of a single rapporteur for several cases where their subject ma er is connected
It is unlikely that the Court of Justice will overturn the result. However, it is likely that the Vice-President of the Court of Justice will grant again the interim measures on similar grounds as it did in the rst interim measures case
ce rules on the interim measures that the Catalan leaders are bound to request While the Vice-President of (71) the Court of Justice, in its Order of 24 May 2022, had shown sympathy for the Catalan leaders’ arguments regardingthepossiblelackofimpartialityoftherapporteurandthechairoftheCommi eeonLegalAffairsonaprima facie (72) (73) basis, the General Court replied to those points convincingly. As a result, and taking into account that appeals must be limited to points of law, as well as the wide discretion of the EP in granting the waivers, it is unlikelythattheCourtofJusticewilloverturntheresult However,itis likelythattheVice-PresidentoftheCourt of Justice will grant again the interim measures on similar grounds as it did in the rst interim measures case (C629/21 P(R)) because that reasoning can be transposed here very similarly and rejecting the interim measures wouldvoidtheappealofitseffectiveness.
e Court’s rulings on the interim measures and the merits of the case are likely to drag the Catalan Saga on for at least another 1-2 years. In the meantime, the next EP elections will take place in June 2024, where the Catalan leaders are likely to be reelected. In that case, there is an ongoing legal discussion as to whether the EP Waivers would lose their effect and the SSC would have to request the waiver of their MEP immunity anew.
(74) In my view, the EP Waivers would retain their effect a er the re-election of the Catalan leaders because the legal basis for their grant, i e , the established lack of fumus persecutionis by the Spanish authorities, remains. A fortiori that would be the case with an even more extended timeframe, where it could not be credibly claimed that the aim of the national criminal proceedings that began in 2017 was to interfere with the candidates’ hypotheticalelectionandtheEP’sfunctioningalmostsevenyearslater by 2024. ese facts show at least the evident weaknesses of the maximalist interpretation of the objective concept of immunity thattheCourtofJusticede nedinJunquerasVies. (75)
In any event, as is o en the case, current events may pre-empt any legal results, as the Catalan leaders are seeking to negotiate an ‘amnesty’ with the Spanish Socialist Group in exchange for support for their investiture into Government, just as they previously managed to pass an amendment of the Spanish ad hoc CriminalCodethatsigni cantlyreducedtheirlikelysentences.
As for Ms. C. Ponsatí, she voluntarily returned to Spain before the outcome of these cases on 28 March 2023, and surrendered herself to the Spanish authorities, where she is facing criminal proceedings. (76)
e EP Waivers would retain their effect a er the re-election of the Catalan leaders because the legal basis for their grant, i.e., the established lack of fumus persecutionis by the Spanish authorities, remains. A fortiori that would be the case with an even more extended timeframe
2 to 6 October 2023
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e European Commission issued the Recommendation on critical technology areas for the EU's economic security, outliningtheneedforriskassessmentsinfourkeytechnologydomainscrucialtotheeconomicsecurityoftheEU.
Wednesday 4 October
e representatives of the EU member states reached an agreement on a crucial component of the common European asylum and migration policy, which pertains to a regulation concerning crisis situations, including the instrumentalization of migration and force majeure within the context of migrationandasylum
ursday 5 October
e National Insurance Court (Trygdere en) sought an Advisory Opinion from the EFTA Court regarding a claim for invalidity bene ts, which was published in the OJ: A v Arbeids- og velferdsdirektoratet(CaseE-3/23).
ursday 5 October
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e ECtHR delivered its judgment in Andrz ej Ruciński v. Poland (Application no. 22716/12) concluding that the measures taken by Poland in a case involving an applicant who faced signi cant interference with his property rights due to tax decisions that were later found to be awed, constituted an excessive burden on the applicant, leading to a violation of Article1ofProtocolNo.1.
ursday 5 October
ursday 5 October
On 5th October, the European Court of Human Rights (ECtHR) delivered its judgment in Ikotity and Others v. Hungary (Application No. 50012/17), a case concerning the refusal to grant permission to the applicants to use posters during aninterpellationspeechbyoneoftheircolleagues
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e Court of Justice delivered its judgment in NemzetiAdó-és Vámhivatal Fellebbviteli Igazgatósága (C-279/22) concerning the interpretation of Directive 2013/34/EU on the annual nancialstatements,consolidated nancialstatementsandrelatedreportsofcertaintypesofundertakings
agreement on phasing out uorinated gases andozone-depletingsubstances
ursday 5 October
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e Council and the Parliament reached a provisional politicalagreementtophasedownsubstancesthatcauseglobalwarming and deplete the ozone layer, which comprises the nal step of the negotiations on uorinated gases and con rms an informal agreement found in June on ozone-depleting substances
Court of Justice rules on the enforcement of judgments imposed by previous criminal convictions that had been handed down by a court of anotherMemberState
ursday 5 October
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eFourthChamberoftheCourtofJusticedelivereditsjudgmentincaseQS(C-219/22),concerningapreliminaryruling request, lodged by the District Court of Nesebar, on the execution of a judgment imposed by a previous criminal conviction that had been handed down by a court of another MemberState
AG Emiliou: Commission was entitled to restrict scope of ECI upon registration
ursday 5 October
On5thOctober,AGEmiliouhandeddown hisOpinioninRomaniav.Commission (C-54/22P),acaseconcerningtheEuropean Citizens’ Initiative (ECI), which follows the General Court’s earlier judgment in Romania v. Commission (T-495/19)
AGEmiliouclari esMemberStates’social security obligations in cases involving cross-border ‘child-raising’ periods
ursday 5 October
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On 5th October, AG Emiliou handed down his Opinion in Deutsche Rentenversicherung Bund (C-283/21), a request for a preliminaryrulingfromtheHigherSocialCourtinNorthRhine-Westphalia (Germany) concerning the recognition of ‘child-raising periods’ completed in other Member States for thepurposeofgrantingapension
Activity of a payment institution accepting funds without a speci c payment order cannot be classi ed as electronic money, puts forward AG Campos Sánchez-Bordona
ursday 5 October
AG Rantos: Article 101 TFEU does not preclude classi cation as restriction of competition by object of practice arti ciallyincreasingtransparencyandreducingmarketuncertainty
ursday 5 October
Advocate General Rantos delivered his Opinion in Banco BPN v BIC Português and Others (C-298/22), a case which, as noted by the AG, provides the Court with the opportunity to develop its case law on the analysis of exchanges of informa-
Regulation1370/2007precludesMember State from introducing additional conditions relating to the payment of public service compensation, suggests AGRantos
ursday 5 October
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AdvocateGeneralRantosdeliveredhisOpinioninacaseconcerning a request for a preliminary, made in the context of a dispute between the Municipality of Pomorie, Bulgaria, and the company Anhialo concerning the grant of public service compensation due under a public service contract concluded for the provision of public passenger transport services by bus:ObshtinaPomorie(C-390/22)
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Advocate General Campos Sánchez-Bordona rendered his Opinion in ABC Projektai (C-661/22), a case concerning a preliminary reference which, as noted by the AG, will enable the Court to clarify the concept of ‘electronic money ’ , within the meaning of Directive 2009/110 on the taking up, pursuit and prudential supervision of the business of electronic moneyinstitutions.
Friday 6 October
Friday6October
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Information on the European Commission’s decisions, pursuant to Articles 107 and 108 TFEU, not to raise objections againstcertainStateaidmeasureswasofficiallypublished.
Friday 6 October
e Court of Justice delivered its judgment in OFP (Statut de réfugié d’un apatride d’origine palestinienne) (case C-294/22), a preliminary ruling request from the Conseil d’État (Council of State, France) concerning the interpretation of Article 12(1)(a) 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 subsidiaryprotection,andforthecontentoftheprotectiongranted.
Friday 6 October
e Sixth Chamber of the Court of Justice delivered its judgment in Osteopathie Van Hauwermeiren (C-355/22), a case concerningapreliminaryrulingrequest,madeinproceedings between Osteopathie Van Hauwermeiren BV and the Belgian State concerning a report and a collection and recovery notice for value-added tax (VAT) due for the period from 2013 to 2019,a neandinterest
Friday 6 October
Official publication was made of Commission Decision (EU) 2023/2103, issued on 3 March 2023, pertaining to State aid SA 20829,involvingamunicipalrealestatetaxexemptiongrantedtonon-commercialentitiesforspeci cpurposesinItaly
Court of
National court cannot use national provision maintaining the effects of a measure that has been found incompatiblewiththeVATDirective
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Op-Ed, part of a Symposium on EU Agencies, on the European Defence Agency (EDA), the European Union Satellite Centre (SatCen, or EUSC), and the European Union Institute for Security Studies (ISS, or EUISS), which, according to the author, are subjected to the ultimate contradiction, in that, whilst they are centered around EU external relations, they are all, fundamentally, operating internally within the EU legal order, and do not engage in external relations themselves,resultinginthembeingparticularlyweakasstandalone
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Analysis, of the Court of Justice’s judgment in Charles Taylor Adjusting (C-590/21), where the Court ruled that judgments that qualify as ‘”quasi” anti-suit injunctions’ run counter to the EU fundamental principle of mutual trust between the MemberStatesandtheirrationaleisagainsttheconceptofpublicpolicylaiddown intheBrusselsIRegulationandBrussels IbisRegulation.
Insightre ectingontheambitiontodeepen,inadditiontowidening the EU, which, according to the authors, mainly focuses on technical substantive reforms, rather than more grandioseproposalsa emptingtoreorienttheEuropeanproject.
Op-Ed on the General Court’s judgment in Venezuela v Council Case T-65/18 RENV concerning restrictive measures, whereby the Court, following the Court of Justice’s ruling that Venezuela enjoyed legal standing as a legal person and that its application is therefore admissible, rejected Venezuela’sapplicationonceagain,thistimeonthemerits.
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Op-Ed on whether preliminary rulings issued by the Court of Justice should hold the same weight as judgments made by theConstitutionalCourt,therebyallowingbothtoserveasvalid reasons for reopening cases that concluded with con ictingjudgments,andwhethertheprincipleofinterpretationof national law in conformity with EU law necessitates an interpretation of a provision like Article 401(2) KPC to encompass the failure to review ex officio the unfairness of contractualtermsasgroundsforreopeningacase.
Op-Ed on the Court of Justice’s judgment in Tuk Tuk Travel (C-83/22), where the Court, according to the author, seems to have taken an approach that deviates, at least to some extent, from the conclusions reached in its previous case law, where it concluded that, for the sake of the effectiveness of EU consumer law, national courts were required to disregard basic principles of national procedure, such as the principle of consistencyofthejudgmentwiththeparties’pleasortheprincipleofresjudicata
When are serious difficulties serious enough? e Court’s Dansk Erhverv rulinganditsrami cations READ
by Dimitrios KyriazisOp-Ed on the Court of Justice’s judgment in Dansk Erhverv (Joined Cases C-508/21P and C-509/21P), which, according to the author, demonstrates the opaqueness of where the Commission encounters ‘serious difficulties’ as to open a formal state aid investigation, instead of limiting itself to a preliminaryassessmentandreaching‘premature’conclusions.
Whotorepresentwhenyou’rerepresenting: Procedural rights and standing of ‘representative associations’ in antidumping annulment proceedings: CCCMEvCommission(C-478/21P) READ
by Mark KonstantinidisOp-Ed commenting on selected admissibility and procedural aspectsoftheCCCMEjudgment,namelytherelationshipbetween standing under Article 263 TFEU and administrative rightsduringanti-dumpinginvestigationsundertheBasicRegulation and the deferential approach adopted by the Court inallowingassociationstobringannulmentproceedingsbefore EU Courts on behalf of their members, notwithstanding theirinternalorganisationandtieswithstateauthorities.
Unlocking justice: is the principle of effectiveness the key to reopening consumer contract cases? Pro Credit Polska(C-582/21)
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