Weekend Edition Nº159 by eulawlive

Nº159

OCTOBER 21

2023

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TAMÁS KÁDÁR, PETR POLÁK

QUO VADITIS EQUALITY BODIES? CRITICAL REFLECTIONS ON THE FUTURE OF EU ANTI-DISCRIMINATION LAW ENFORCEMENT

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Nº159 · OCTOBER 21, 2023

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QUO VADITIS Equality Bodies? Critical reﬂections on the future of EU anti-discrimination law enforcement Tamás Kádár, Petr Polák

Two similar scenarios, two completely diﬀerent outcomes Let's start with two real stories from two diﬀerent EU Member States. Both stories involve individuals who claim to have experienced discrimination on the grounds of racial or ethnic origin in accessing services. In the rst case, a man of Roma origin is prevented from boarding a ight in Prague by an airline. e second case concerns a man of Chilean nationality who is subjected to additional security checks at Stockholm airport because he looks like an Arab and is a Muslim. Both individuals approach the equality body (2) in their country and seek legal support. is moment is where all similarities between the two stories end. e Czech Equality Body has no investigative powers and cannot demand cooperation from the airline (a private entity). Nor can the Equality Body represent the complainant in court proceedings, or le an antidiscrimination action against the discriminatory policy. e Czech Equality Body closes the case by issuing a few non-binding recommendations on passenger screening. (3) It will never know whether its recommendations were implemented in practice since the airline is under no legal obligation to respond to the recommendations. On the contrary, the Swedish Equality Body les a lawsuit to the national court on behalf of the man and represents him throughout the proceedings. It requires the airline to acknowledge the discrimination and pay the man 1,000 euros in damages. e rst claim of the Equality Body is the subject of a dispute that eventually ends up before the Court of Justice of the EU. e Equality Ombudsman submits his opinion to the Court and participates in the oral hearing directly in Luxembourg. e Court nds that Swedish law is in breach of EU law (4) and the man is granted recognition of discrimination by the national court. (5)

1. Tamás Kádáris Co-Director of Equinet, the European Network of Equality Bodies, Petr Polák works as Legal Adviser in the Oﬃce of Public Defender of Rights (Ombudsperson) in the Czech Republic. e views expressed in this article are solely those of both co-authors and do not necessarily re ect the views or opinions of organisations in which they work. 2. Equality Bodies are independent public bodies that are responsible for promoting and enforcing the principle of equality. 3. Public Defender of Rights (CZ), Report on the case of denial of check-in to Roma passengers at the airport (20.12.2017), le no. 4637/2015/VOP/VB. 4. Judgement of the Court of Justice of 15 April 2021, Diskrimineringsombudsmannen v Braathens Regional Aviation AB (C-30/19, EU:C:2021:269). 5. Supreme Court, case Ö 2343-18, Diskrimineringsombudsmannen v Braathens (21.12.2021).

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As you can easily see, two very similar scenarios (both governed by the Racial Equality Directive (6)) resulted in completely different legal outcomes. In the rst case, the person (the presumed victim) did not succeed in ge ing to court at all, whereas in the second case the victim received the compensation he claimed for. Moreover, the second case has contributed signi cantly to the interpretation of EU law (the right to effective remedy) for all Europeans. So how exactly were the Equality Bodies established? What is their anchoring in EU law, why do they differ signi cantly in their mandates and competences and, last but not least, why does the European Commission propose to adopt two directives that would lead to their strengthening?

EU Standards are Equality Bodies’ best friends Equality Bodies are independent public bodies that are responsible for promoting and enforcing the principle of equality. ey assist victims of discrimination, monitor and report on discrimination issues, and contribute to raising awareness of people’s rights and the value of equality. (7) rough their intensive work with victims and monitoring activities, some Equality Bodies contribute signi cantly to the interpretation of EU equality law. (8) In light of the current legislative initiative, it is good to note that Equality Bodies are so far required by EU law to combat discrimination only on the grounds of racial and ethnic origin and sex in specic elds. e past 20 years have shown that the relatively wide margin of discretion le to Member States and the lack of guarantees made it diﬃcult for many Equality Bodies to carry out their essential functions. It was the voice of Equality Bodies themselves who, predominantly through Equinet – European Network of Equality Bodies, began to draw a ention to the undeniable fact that there are signi cant diﬀerences and gaps between Equality Bodies across Mem-

rough their intensive work with victims and monitoring activities, some Equality Bodies contribute signi cantly to the interpretation of EU equality law

6. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, p. 22–26. 7. Niall Crowley, Equality bodies making a diﬀerence, Publications Oﬃce of the European Union, 2018, p. 38-39. 8. See, for instance,two important headscarves cases decided in judgements of the Court of Justice of 14 March 2017, Samira Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijdingvG4S Secure Solutions NV (C-157/15, EU:C:2017:203) and Asma Bougnaoui, Association de défense des droits de l’homme (ADDH) v Micropole SA (C-188/15, EU:C:2017:204).

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ber States, in particular as regards their mandate, powers, leadership, independence, resources, accessibility and eﬀectiveness. (9) erefore, the idea of new EU legislation to strengthen the role of national Equality Bodies through standards was born and started its unprecedented journey. (10) e European Commission initially responded to this challenging situation in 2018, with a non-binding recommendation on standards for Equality Bodies. (11) In 2021 the Commission published a report in which it noted that most of the issues remained unresolved. (12) Finally, at the end of 2022, the Commission proposed two directives on binding standards for Equality Bodies to ful l their potential and maximise their impact.

Current state of ‘legislative’ play e rst proposal seeks to strengthen the application of the principle of equal treatment as derived from Directives 2006/54/EC and 2010/41/EU, (13) the second one concerns obligations arising from Directives 79/7/EEC, 2000/43/EC, 2000/78/EC and 2004/113/EC. (14) As these Directives were adopted under two different legal bases, with two different adoption procedures, this initiative consists of two essentially identical proposals, with two different legal bases. Both proposals address the same areas: mandate, independence, resources, tasks and powers of Equality Bodies (including prevention, research, awareness-raising, and assistance to victims). Having made great advances under the Swedish Presidency, on 12 June 2023, employment and social affairs ministers agreed to a Council general approach on the two proposals. (15) One of the general approaches agreed is currently negotiated under the ordinary legislative procedure based on Article 157 TFEU and requires the agreement of the Council and the European Parliament. Regarding the proposal negotiated under a special legislative procedure based on Article 19 TFEU, the European Parliament will be requested to give its consent. e European Parliament dra report was released on 6 July 2023. (16) In this Long-Read we focus exclusively on investigative and litigation powers of Equality Bodies in the light of both proposals, Council general approach and EP Dra report. More speci cally, we seek answers to the following questions:

9. Niall Crowley, Equality Bodies Current Challenges, Equinet, the European Network of Equality Bodies, 2012. 10. Niall Crowley, Developing Standards for Equality Bodies, Equinet, the European Network of Equality Bodies, 2016. 11. Commission Recommendation (EU) 2018/951 of 22 June 2018 on standards for equality bodies (OJ L 167, 4.7.2018). 12. Report from the Commission to the European Parliament and the Council of 19 March 2021 on the application the Racial Equality Directive and the Employment Equality Directive, COM(2021)139. 13. Proposal for a Directive of the European Parliament and of the Council of 7 December 2022 on standards for equality bodies in the eld of equal treatment and equal opportunities between women and men in ma ers of employment and occupation, and deleting Article 20 of Directive 2006/54/EC and Article 11 of Directive 2010/41/EU, COM(2022) 688 nal, 2022/0400(COD). 14. Proposal for a Council Directive of 7 December 2022 on standards for equality bodies in the eld of equal treatment between persons irrespective of their racial or ethnic origin, equal treatment in the eld of employment and occupation between persons irrespective of their religion or belief, disability, age or sexual orientation, equal treatment between women and men in ma ers of social security and in the access to and supply of goods and services, and deleting Article 13 of Directive 2000/43/EC and Article 12 of Directive 2004/113/EC, COM(2022) 689 nal, 2022/0401(APP). 15. Council General Approach to proposal for a directive on standards for equality bodies (Article 19 TFEU) Interinstitutional File: 2022/0401(APP); Council General Approach to proposal for a directive on standards for equality bodies (Article 157 TFEU) Interinstitutional File: 2022/0400(COD). 16. European Parliament dra report on the proposal on standards for equality bodies (Article 157 TFEU)2022/0400(COD).

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1. Do the dra directives impose an obligation on Member States to ensure that Equality Bodies have the right to investigate all cases in which discrimination is alleged? 2. Do the dra directives introduce an obligation for Member States to ensure that Equality Bodies have the right to represent a victim of discrimination in court or to initiate legal proceedings even without an identi able victim?

To grant or not to grant investigation powers? e power to investigate, or gather evidence, in discrimination cases is a basic and crucial element in the toolbox of Equality Bodies if they are to successfully identify and challenge discrimination and enhance access to justice for victims of discrimination. Investigation powers could include for instance requiring the production of les or documents, on-site inspections, questioning persons, applying for an enforceable court order or imposing administrative nes if an individual or institution does not comply with the investigation. (17) e power to investigate is rarely questioned when the Equality Body has a decision-making function and acts as a quasi-court or tribunal. On the other hand, investigation powers are more o en called into question when assisting individual victims or groups of victims of discrimination. 1/

e power to investigate, or gather evidence, in discrimination cases is a basic and crucial element in the toolbox of Equality Bodies if they are to successfully identify and challenge discrimination and enhance access to justice for victims of discrimination

e Commission Proposal

It is somewhat surprising that investigation powers are discussed in Article 8, under the title ‘Opinions and decision’, thus, giving li le to no clue about the topic. Article 8(1) provides that if the Equality Body identi es potentially discriminative situations, it can further investigate the case. Article 8(2) goes on to oblige Member States to provide for a framework which enables equality bodies to carry out fact- nding. e same paragraph also provides Equality Bodies with ‘effective rights to access information’ and ‘appropriate mechanisms’ for cooperating with relevant public bodies during the investigation. Finally, Article 8(3) gives the option to Member States to ‘provide that the alleged perpetrator and any third party is legally bound to provide any information and documents requested by equality bodies’. As Equinet pointed out in its Position Paper, (18) the concrete difference, if any, between investigation powers under Article 8(2) and 8(3) is unclear, as one could argue that ‘effective rights to access information’ could plausibly include obliging the handing over of evidence. Importantly, Article 8 does not limit investigation powers to those Equality Bodies with a decision-making function but provides it for all of them.

17. ECRI General Policy Recommendation no.2 of 7 December 2017, Equality bodies to combat racism and intolerance at national level, paragraph 21. 18. Tamás Kádár. Moving forward the European Commission’s proposals for Directives strengthening Equality Bodies. Equinet, the European Network of Equality Bodies, 2023.

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Last, but not least, the Commission Proposals take a somewhat unexpected turn when Article 9(4) provides that Member States shall ensure that the equality body does not submit in court proceedings evidence that it has obtained through the exercise of powers pursuant to Article 8(3), i.e., where the alleged perpetrator or any third party is legally bound to provide any information and documents. (19) e recitals clarify that the reason for this limitation is to safeguard the principles of fair trial and equality of arms. Article 9(4) is problematic for a number of reasons, listed in more detail in Equinet’s Position Paper. First, there are Equality Bodies that already have similar effective investigation powers and for them, and the victims, this provision would represent a major regression. It is also in contrast with other elds of law, where such investigation powers are granted to a public authority, for instance to Data Protection Authorities (20) and Competition Authorities. (21) ese provisions also seem contrary to the principle of subsidiarity, regulating in a manner and at a depth that undermines the national procedural autonomy of Member States. Furthermore, the ‘equality of arms’ justi cation is questionable in light of one of the most important and basic objectives of equal treatment law: to counterbalance the typically stronger position of perpetrators of discrimination. e practical viability of this provision is also questionable as it only limits the Equality Body, but not others, in using evidence so obtained for litigation. is could be relevant, for instance, if the Equality Body obtains evidence using its power under Article 8(3), then bases its non-binding opinion or binding decision on such evidence, but it is then the victim or an NGO that litigates and refers to the opinion/decision, effectively making use of the evidence that the Equality Body wouldn’t be able to use. Finally, these provisions run the risk of creating a perverse effect in that perpetrators may refuse to cooperate with Equality Bodies until they are legally bound to do so under Article 8(3). Once that happens, they can be sure that in court proceedings, the Equality Body will not be able to use any of the documents and information so obtained. All in all, while Article 8 in general provides useful investigation powers to all Equality Bodies (not limiting it to those with a decision-making function), Article 9(4) has the potential of undermining the effectiveness of the Directives and EU equal treatment law in general. 2/

e Council General Approach and the European Parliament Dra Report

e Council General Approach, as well as the European Parliament’s Dra Report, bring welcome clarity by creating a new, separate Article 8a on Opinions and decisions, dedicating Article 8 exclusively to provisions on investigation.

19. With two exceptions: amicus curiae and when the quasi-judicial Equality Body defends its own decision. 20. See Article 57(1)f) and h), Article 58(1) and Article 58(5) of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). 21. See Article 5(2) and Article 30 of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more eﬀective enforcers and to ensure the proper functioning of the internal market.

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e ‘equality of arms’ justi cation is questionable in light of one of the most important and basic objectives of equal treatment law: to counterbalance the typically stronger position of perpetrators of discrimination

e two legislators also agree on deleting Article 9(4), indicated above as a highly problematic paragraph, threatening the effective use of evidence obtained through investigations. Both the Council and the Parliament propose deleting Article 8(3) concerning the legally binding nature of investigations. However, there is a key difference in that the Parliament’s dra report proposes to change 8(2) in a way that includes this legally binding element, providing that the Equality body may oblige the alleged perpetrator and any third parties to provide information and documents when requested. Such a reference is missing from the Council General Approach. Last, but not least, the Council General Approach introduces a new Article 8(4), effectively allowing Member States to entrust ‘another competent body’ with investigation powers in discrimination cases, stipulating that such a body should provide the Equality Body, upon request, with the results of its investigations. Although the background to this new paragraph may have been a concern about the limited capacity of Equality Bodies to conduct investigations (when compared with, for instance, labour inspectorates), it could have the problematic consequence that Equality Bodies in some countries will be le without any effective investigation powers of their own, despite being the experts in equality law. Arguably, it would have been be er to provide for such delegation of investigation powers in addition to safeguarding the own investigation powers of Equality Bodies.

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Equality Body: ‘See you in Court!’ Alleged perpetrator: ‘Are you sure about that?' Most Equality Bodies have some form of legal standing in front of Courts, referring to the right or ability to bring a legal action to a court of law, or to appear in court. is can entail giving expert advice to the Court as a non-party (for instance as amicus curiae), representing or supporting victims of discrimination in Court, defending their own decisions in Court if appealed, or bringing cases of discrimination in the Equality Body’s own name, in defence of the principle of equality.

ere are still many Equality Bodies that have none of these powers or only have the most limited ones, such as providing observations to the court, but only on invitation, not on their own initiative

However, there are still many Equality Bodies that have none of these powers (22) or only have the most limited ones, such as providing observations to the court, but only on invitation, not on their own initiative. e usefulness of litigation powers is further illustrated by the examples in the introduction above, as well as in Equinet’s relevant factsheet. (23) 1/

e Commission Proposal

Article 9 of the proposals grants litigation powers to all equality bodies. According to the Explanatory Memorandum, this allows Equality Bodies to ‘concretely support victims in accessing justice, but also to elicit legal interpretation of rules and social change via strategic litigation’. Article 9(1) is an overall provision, obliging Member States to ensure that Equality Bodies have the right to act in (administrative and civil) court proceedings. Article 9(2) and 9(3) set out the types of litigation powers that shall be available to Equality Bodies: (i) acting as a party in proceedings on the enforcement or judicial review of a decision taken pursuant to Article 8(4); (ii) submi ing observations to the court as amicus curiae; (iii) initiating or participating in proceedings on behalf or in support of one or several victims, with the approval of the victims; (iv) initiating court proceedings in its own na-

22. Niall Crowley, Equality bodies making a diﬀerence, Publications Oﬃce of the European Union, 2018, p. 70-77. 23. Equinet Factsheet, Litigation powers of Equality Bodies, Equinet, the European Network of Equality Bodies, 2023.

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me, in particular in order to address structural and systematic discrimination in cases selected by the equality body because of their abundance, their seriousness or their need for legal clari cation. It is noteworthy that the proposals require Member States to provide Equality Bodies with the full spectrum of litigation powers. 2/

e Council General Approach and the European Parliament Dra Report

It is fair to say that Article 9(2) and (3) on litigation powers were among the provisions that generated the most heated and lengthy debates between Member States in the Council. is is hardly surprising, given the wide variety of legal systems, traditions, and institutional setups in Europe and the important discretionary power of deciding what forms of legal standing a public authority should be granted. e resulting General Approach continues to require all Equality Bodies to have the power to act as a party in proceedings on the enforcement or judicial review of binding decisions (point (i) above) and to submit observations to the court (point (ii) above), albeit the la er only ‘in accordance with national law and practice’, an important concession for instance in countries where the Equality Body cannot submit such observations on its own initiative. e General Approach makes a signi cant step back when only requiring Member States to grant to Equality Bodies at least one of the following three powers: initiating proceedings or participating in proceedings on behalf of one or several victims (separating point (iii) above into two), or initiating court proceedings in its own name, in order to defend the public interest (point (iv) above). Compared to this, the European Parliament’s dra report keeps most of the provisions intact (no mention of optionality of any of the powers), with the most important amendment being the addition of the right to act in court proceedings where collective redress is used. (24) Some hard negotiations are probably to be expected on this point…

24. European Parliament dra report, see amendment 57.

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Conclusions And so, quo vaditis Equality Bodies? We are con dent that to emerge as stronger and more eﬀective institutions with strong legislative guarantees and standards – a major step forward. e Directives grant strong investigation powers for them in all discrimination cases, although the Council General Approach risks undermining this power, by allowing Member States to delegate such investigations to other institutions. Our hope is that this can still be corrected in the remainder of the negotiations, but even if it stays, it is likely that only a few Member States would avail themselves of this opportunity. Concerning legal standing and litigation powers, it is hard to predict how the negotiations between Parliament and Council will play out. However, even if the Council’s version prevails and Member States will get to pick and choose certain litigation powers, in many cases this will nonetheless mean a signi cant step forward, where currently the Equality Body has neither the right to represent victims, nor the right to litigate on its own initiative. In other cases, we expect Member States to be more proactive and grant the full range of litigation powers – as is the case already in some Member States. While our topic is investigation and litigation powers, it is important to acknowledge that they can only be used eﬀectively as part of a strong institution. erefore, it is crucial that the proposed Directives are comprehensive and contain guarantees for the Equality Bodies’ full independence, human, technical and nancial resources, mandate and powers as well as their accessibility. At the end of the day, it is a case of a seemingly technical piece of legislation holding the potential to signi cantly improve protection from inequality and discrimination – and thus the lives of all in the European Union.

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e Directives grant strong investigation powers for them in all discrimination cases, although the Council General Approach risks undermining this power, by allowing Member States to delegate such investigations to other institutions

Iit is crucial that the proposed Directives are comprehensive and contain guarantees for the Equality Bodies’ full independence, human, technical and nancial resources, mandate and powers as well as their accessibility

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News Highlights 16 to 20 October 2023

Appeal in Repasi v. European Parliament, on the right of action of MEPs, published in OJ

Preliminary ruling request concerning EU State Aid and property tax exemption in Poland, published in OJ

Monday 16 October

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A case brought on appeal before the Court of Justice concerning an action by which the appellant claims that the Court should set aside the order of the General Court in Repasi v Commission (T-628/22) and consequently annul Commission Delegated Regulation 2022/1214 amending Delegated Regulation 2021/2139 as regards economic activities in certain energy sectors was oﬃcially published in the OJ.

Oﬃcial publication was made of a Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) lodged on 19 July 2023, concerning the interpretation of Article 107(1) and Article 108(3) TFEU, in conjunction with Article 2 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU: Prezydent Miasta Mielca (Case C-453/23).

Court of Justice to clarify jurisdiction for cross-border so ware development contract dispute

Preliminary reference on the interpretation of the right to compensation following the unlawful processing of personal data, published in OJ

Monday 16 October

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Monday 16 October

Oﬃcial publication has been made of a preliminary ruling request from the Oberster Gerichtshof (Austria) dated August 17, 2023, concerning the jurisdiction for cross-border so ware development contract dispute: VariusSystems (C-526/23).

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Oﬃcial publication was made of a case concerning a preliminary ruling request regarding the interpretation of the right to compensation and liability resulting from the unlawful processing of personal data, as prescribed by Article 82(1) GDPR: Patērētāju tiesību aizsardzības centrs (C-507/23).

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Members of the European Council issue statement on the situation in the Middle East

General Court to rule on the withdrawal of the Baltic International Bank’s authorisation as a credit institution

Monday 16 October

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e European Council adopted a statement se ing forth the EU’s common position on the unfolding situation in the Middle East regarding Hamas’ indiscriminate terrorist a acks and Israel’s response to such a acks.

Oﬃcial publication was made of an action for annulment brought by Baltic International Bank, SE, a nancial institution based in Riga, Latvia, against the European Central Bank (ECB) concerning Decision ECB-SSM-2023-LV-2 WHD2022-0014 of the European Central Bank of 3 July 2023 on the withdrawal of the supervisited entity’s authorisation as a credit institution; Baltic International Bank v ECB (Case T-551/23).

Preliminary reference regarding case law-developed principles governing the prohibition of cartels, published in OJ Tuesday 17 October

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Oﬃcial publication was made of a case concerning a preliminary ruling request by which the German Federal Court of Justice has sought clari cation in regard to the principles, developed by the Court of Justice of the EU, governing the application of the rules prohibiting cartels: ROGON and Others (C-428/23).

Court of Justice streaming hearing today of case concerning a nancial penalty imposed on a newspaper possibly constituting ground for refusing to recognise and enforce judgment Tuesday 17 October

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Council reaches agreement on new proposal to further reduce CO2 emissions in the road transport sector Tuesday 17 October

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e Council adopted its general approach on a proposal to update and strengthen the regulation on CO2 emission standards for heavy-duty vehicles, the aim of which is to further reduce CO₂ emissions in the road transport sector and to introduce new targets for 2030, 2035 and 2040.

Court of Justice to clarify Bulgarian tax assessment and COVID-19 implications Tuesday 17 October

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e Court of Justice’s hearing in Real Madrid Club de Fútbol (C-633/22) concerning the interpretation of Articles 34 and 36 of the Brussels I regulation and Article 11 of the Charter of Fundamental Rights, within the context of a nancial penalty imposed for harm caused to the reputation of a sports club by the publication of a story in a newspaper, which can manifestly infringe the freedom of expression and thus constitute a ground for refusing the recognition and enforcement of the underlying judgment was streamed on the Court of Justice’s website.

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Oﬃcial publication was made of a preliminary ruling request concerning a tax assessment notice issued by a Bulgarian tax authority that denied the applicant's right to correct a technical error in relation to an earlier tax period. Speci cally, the applicant was seeking to deduct input tax for supplies received prior to their registration under the Zakon za danak varhu dobavenata stoynost (ZDDS): NARE-BG (C-429/23).

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Request for a preliminary ruling concerning the compatibility of Bulgarian criminal law with EU Law, published in OJ Tuesday 17 October

Council sets climate priorities for COP28: ambitious goals and sustainable transition Tuesday 17 October

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e Council endorsed a set of conclusions outlining the EU's general negotiating position for the event and emphasizing the signi cance of bold climate action for the global environment, economy, and people.

A request for a preliminary ruling from the So yski gradski sad (Bulgaria) concerning proceedings against 41 individuals accused of running a criminal organization engaged in drug distribution, was published in the OJ: PT II (Case C-398/23).

EU strengthens climate commitment: Updated NDC sets ambitious GHG reduction target

Council adopts general approach on proposal to review rules on more eﬃcient wastewater management

Tuesday 17 October

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e Council has approved the submission of an updated nationally determined contribution on behalf of the EU and its member states to the United Nations Framework Convention on Climate Change.

e Council reached an agreement on a proposal to review the Urban Wastewater Treatment Directive, in the context of the EU's zero-pollution action plan.

Commission conducts unannounced inspections in the construction chemicals industry over concerns of anticompetitive behaviour

EU adds Antigua and Barbuda, Belize and Seychelles to List of NonCooperative Tax Jurisdictions

Tuesday 17 October

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e European Commission carried out unannounced inspections at the premises of companies active in the construction chemicals sector in several Member States, following concerns over possible breaches of Article 101 TFEU on the prohibition of cartels and restrictive business practices.

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e Council expanded its list of non-cooperative jurisdictions for tax purposes comprising 16 jurisdictions that have not engaged in constructive dialogues with the EU regarding tax governance or have failed to implement necessary reforms focusing on tax transparency, fair taxation, and international standards designed to combat tax base erosion and pro t shi ing.

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Council adopts general approach on proposal to reform EU’s electricity market design

Council adopts directive expanding tax cooperation for crypto-assets and wealthy individuals

Wednesday 18 October

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e Council adopted its general approach on a proposal to amend the EU’s electricity market design (EMD), the aim of which is to make electricity prices less dependent on volatile fossil fuel prices, shield consumers from price spikes, accelerate the deployment of renewable energies and improve consumer protection.

e Council adopted a directive, proposed by the European Commission in December 2022, which seeks to address challenges in the digital economy, focusing on two main areas: reporting on crypto-assets and advance tax rulings for high-networth individuals.

Commission proposes measures to streamline out-of-court dispute resolution and enhance consumer rights

General Court annuls additional customs duties on certain U.S. lighters

Wednesday 18 October

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e General Court delivered its judgment in Zippo Manufacturing and Others v Commission (T-402/20), annulling the additional customs duties on certain lighters from the United States.

e European Commission introduced a proposal to modernize and simplify rules for out-of-court dispute resolution, alongside a recommendation aimed at aligning online marketplaces' dispute resolution systems with European standards.

General Court dismisses three actions brought by Ryanair against Commission’s decisions approving state aids as a response to the economic challenges posed by COVID-19

General Court dismisses actions seeking the (partial) annulment of Commission decisions relating to proceedings under Article 101 TFEU, in so far as they impose nancial penalties

Wednesday 18 October

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e General Court delivered its judgments in Ryanair v Commission (airBaltic; COVID-19) (T-737/20); Ryanair v Commission (Nordica; COVID-19) (T-769/20); and Ryanair v Commission (Brussels Airlines; COVID-19) (T-14/21) concerning state aid and COVID-19 pandemic responses in diﬀerent countries. In each case, Ryanair DAC has taken legal action against the European Commission's decisions on state aid measures.

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e General Court, si ing in its Extended Composition formation, has delivered its judgments in Clariant and Clariant International v Commission (T-590/20) and Teva Pharmaceutical Industries and Cephalon v Commission (T-74/21), cases concerning actions against the Commission, by which the applicants claimed, principally, that the Court should (partially) annul the Commission Decisions C(2020) 4817 and 8153, in so far as they concern the imposition of nes.

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Commission Infringement Package October 2023 published Wednesday 18 October

Commission Recommendation on quality requirements for online marketplace dispute resolution, published in OJ

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ursday 19 October

e European Commission made public its package of infringement decisions against Member States for failing to comply with their obligations under EU law, for the month of October.

Oﬃcial publication was made of Commission Recommendation (EU) 2023/2211 of 17 October 2023 on quality requirements for dispute resolution procedures oﬀered by online marketplaces and Union trade associations aiming to ensure that consumers have access to high-quality alternative dispute resolution procedures when resolving contractual disputes arising from transactions on online marketplaces within the EU.

Commission unveils comprehensive strategy to mitigate civil drone risks ursday 19 October

Commission recommends Member States respond to the spread of terrorist content or hate speech online, in accordance with the DSA

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e European Commission released a communication outlining measures to address the growing threats posed by the unlawful and dangerous use of drones designed for civil purposes.

ursday 19 October

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e European Commission published a Recommendation for Member States to coordinate their response to the spread of illegal content, such as terrorist content or unlawful hate speech before it can lead to a serious threat to public security.

Commission proposes revision of rules concerning suspension of visa-free regimes ursday 19 October

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Court of Justice dismisses appeal on Staﬀ Regulations in QB v. Commission ursday 19 October

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e Court of Justice handed down its judgment in QB v. Commission (C-88/22 P), a case concerning the Staff Regulations of Officials of the European Union, following the judgment under appeal, by which the General Court dismissed his action seeking annulment of the decision of the Commission’s Office for the Administration and Payment of Individual Entitlements, whereby that office refused to grant QB the expatriation allowance (the decision at issue).

In order to respond to new challenges brought by the evolving geopolitical context, the Commission proposed a revision of the current Visa Suspension Mechanism.

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Nº159 · OCTOBER 21, 2023

Weekend

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Imposing a minimum ve-year prison term for trademark infringement could be deemed excessive: Court of Justice

Court of Justice rules on part-time worker rights in remuneration schemes ursday 19 October

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ursday 19 October

e Court of Justice delivered its judgment in Lu hansa CityLine (C-660/20) concerning whether a part-time worker is entitled to a higher level of remuneration for additional ying duty hours in accordance with the principle of pro rata temporis.

e Court of Justice delivered its judgment in G.ST.T (Proportionality of the penalty for trade mark in ingement) (C-655/21), a case concerning criminal proceedings against an alleged breach of intellectual property rights, whereby the referring court sought clari cation from the Court of Justice on the compatibility of national rules with Directive 2004/48 on the enforcement of intellectual property rights, and the principle of legality and proportionality, as enshrined in Article 49 of the Charter.

AG Medina: Article 49 TFEU precludes retroactive application of national law to a company incorporated in another Member State that has its ‘principal object’ in the former Member State

ECtHR: Violation of human rights in Campania waste crisis and land ll pollution ursday 19 October

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e ECtHR delivered its judgment in Locascia and Others v. Italy (application no. 35648/10), which centers on the waste management crisis in the Campania region and the pollution caused by a land ll site.

ursday 19 October

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Advocate General Medina delivered her Opinion in Edil Work 2 and S.T. (C-276/22), a request for a preliminary ruling from the Supreme Court of Cassation in Italy concerning the rules on the freedom of establishment set out in Articles 49 and 54 TFEU.

Court of Justice: Compensation for public service obligations, in the context of a direct award of a public passenger transport service contract, does not constitute State aid ursday 19 October

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Ne bis in idem: failure to question the accused may constitute relevant indicator of absence of a thorough investigation in the rst Member State ursday 19 October

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e Court of Justice delivered its judgment in Központi Nyomozó Főügyészség (C-147/22), a case concerning the interpretation of the ne bis in idem principle laid down in Article 50 of the Charter of Fundamental Rights and in Article 54 of the Convention Implementing the Schengen Agreement.

e Fi h Chamber of the Court of Justice delivered its judgment in Sad Trasporto Locale (C-186/22), a case concerning a request for a preliminary ruling regarding the interpretation of Article 1(2) of Regulation 1370/2007 on public passenger services by rail and by road and Article 107(1) TFEU.

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Nº159 · OCTOBER 21, 2023

Weekend

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Decision granting refugee status not binding on another Member State subsequently contemplating extradition, argues AG Richard de la Tour ursday 19 October

Court of Justice clari es compatibility of Bulgarian Law on State Ownership with Article 107 TFEU, in context of real estate transactions ursday 19 October

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Advocate General Richard de la Tour delivered his Opinion in Generalstaatsanwaltscha Hamm (C-352/22), a case, which, according to the AG, ‘raises the delicate question of whether a decision granting refugee status adopted by a Member State has a binding eﬀect on the other Member States’, and is therefore ‘of considerable importance for the Common European Asylum System as a whole.’

Commission requests Meta and TikTok to provide information on the dissemination of illegal content and disinformation ursday 19 October

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e Fourth Chamber of the Court of Justice rendered its judgment in a case concerning the interpretation of Article 107 TFEU, Council Regulation 2015/1589, and Commission Decision (EU) 2015/456, within the context of an action against a State aid, granted through swaps of forest land, which was found incompatible with the internal market thereby demanding that aid be repaid: Ministar na zemedelieto, hranite i gorite (C-325/22).

State Aid approval decisions in the Oﬃcial Journal Friday 20 October

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e European Commission sent formal requests to Meta and TikTok to provide additional information on the measures it has taken to mitigate, pursuant to the Digital Services Act, the dissemination and ampli cation of illegal content and disinformation.

Information was published in regard to the European Commission’s decisions pursuant to Articles 107 and 108 TFEU not to raise objections against certain State aid measures.

Notice of expiry review of antidumping duty on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 from China

Commission Notice clarifying certain legal provisions of the Disclosures Delegated Act under EU Taxonomy Regulation

Friday 20 October

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Oﬃcial publication was made of the Commission Notice on the interpretation and implementation of certain legal provisions of the Disclosures Delegated Act under Article 8 of EU Taxonomy Regulation on the reporting of Taxonomy-eligible and Taxonomy-aligned economic activities and assets (second Commission Notice).

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Oﬃcial publication was made of a Notice (C/2023/379) of initiation of an expiry review of the anti-dumping measures applicable to imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People's Republic of China.

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Nº159 · OCTOBER 21, 2023

Weekend

Edition stay alert keep smart

EU activates crisis response mechanism for the Middle East

Commission decision on State aid granted by Italy to Alitalia, published in OJ

Friday 20 October

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In response to the evolving situation in the Middle East, EU leaders conducted a videoconference on October 17th to discuss various aspects of the crisis, including humanitarian aid, engagement with partners, domestic security, and migration.

Oﬃcial publication was made of Commission Decision 2023/2160 of 27 March 2023 on State aid in favour of Alitalia, SA.55678 (2019/NN), implemented by Italy.

Claudia Buch appointed as Chair of ECB Supervisory Board

Commission clears unconditionally the acquisition of Seagen by P zer

Friday 20 October

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e Council announced the appointment of Claudia Buch, who currently serves as the vice-president of the Deutsche Bundesbank, as the new chair of the supervisory board of the European Central Bank.

e European Commission approved unconditionally the proposed acquisition of Seagen by P zer, both pharmaceutical companies specialising in oncology, hormone, and targeted therapies.

Commission publishes updates on FDI screening and export controls

Commission adopts new rules on independent audits of Very Large Online Platforms and Search Engines, under the DSA

Friday 20 October

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e European Commission published its Annual Report on FDI Screening, where it analysed over 420 foreign direct investments (FDI) into the EU.

Friday 20 October

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e Commission has adopted a Delegated Regulation on independent audits to assess compliance of Very Large Online Platforms and Very Large Online Search Engines with the Digital Services Act (DSA).

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Nº159 · OCTOBER 21, 2023

Weekend

Edition stay alert keep smart

Insights, Analyses & Op-Eds

Horizontal application of article 31(2) of the Charter of fundamental rights by the French Cour de cassation: implementation of EU law desperately needs judges by Sophie Robin-Olivier

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Op-Ed on the Court of Justice’s case law concerning the horizontal application of the workers’ right to annual paid leave, which, according to the author, highlights the crucial role of a variety of active judges in ensuring the eﬀective implementation of EU law by Member states.

State aid is discriminatory by nature, but compatible aid does not breach the principle of non-discrimination (Ryanair v Commission, C-320/21) by Malgorzata Cyndecka

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Op-Ed on the Court of Justice’s judgment in Ryanair v Commission (C-320/21), which, as highlighted by the author, has addressed the apparently ‘unequal or unjust distribution of state resources’ under State aid law, in response to the COVID19 pandemic.

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e Ambivalence of Rejecting and Granting Consent: Ad-F(r)ee Digital Services by Alba Ribera Martínez

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Op-Ed on the latest development concerning digital platforms considering charging a fee to cater to ad-free versions of their services, and the possible greater friction that such services may entail in the context of EU data protection regulation and user adoption in some services as opposed to others.

Institutional Ping Pong Match (C-137/21 European Parliament v. European Commission) by Emilia Korkea-aho

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Op-Ed on the Court of Justice’s judgment in European Parliament v. European Commission (C-137/21) (C-320/21) concerning an action for failure to act, within the context of visa requirements for US citizens.

Nº159 · OCTOBER 21, 2023

Weekend

Edition stay alert keep smart

Unchecked action of AFSJ agencies: an issue for delegation of powers by Annalisa Volpato

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Op-Ed, part of a Symposium on EU Agencies, on the responsibility of EU agencies for fundamental rights violations, in particular in the Area of Freedom, Security, and Justice, which, according to the author, has become an important issue concerning the delegation of powers to these agencies and their limits.

e General Court con rms the nonrenewal of the approval of chlorpyrifosmethyl by Erriketi Tia da SIlva

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Analysis of the General Court’s judgment in Ascenza Agro and Industrias A asa v Commission (T-77/20), where, as noted by the author, the Commission’s decision not to renew the approval of chlorpyrifos-methyl was con rmed.

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e interplay between the Schengen Borders Code and the Return Directive – another episode in the reintroduction of internal border controls saga – C-143/22, ADDE and others by Madalina Moraru

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Op-Ed on the Court of Justice’s judgment in ADDE and others (C-143/22), which, as noted by the author, constitutes the latest in a line of cases, originating from France, concerning the complex interaction between the Schengen Borders Code and the Return Directive, within the context of a Member State reintroducing border controls at its internal Schengen frontiers due to serious threats to public policy or internal security.

e Bulgarian saga on minimum rights in criminal proceeding continues: A ‘suspect’ by any other name would be just as protected (Case C-209/22) by Lorenzo Cecche i

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Analysis of the General Court’s judgment in Rayonna prokuratura Lovech, TO Lukovit (Fouille corporelle) (C-209/22), a case concerning the right to information and the right of access to a lawyer in criminal proceedings, and the possibility to eﬀectively exercise these rights in the context of coercive evidence-gathering measures at the pre-trial stage of criminal proceedings.

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