Weekend Edition Nº160 by eulawlive

Nº160

OCTOBER 28

2023

Weekend

Edition

stay alert keep smart

THIBAULT MARTINELLI

THE LIMITED JURISDICTION OF THE COURT OF JUSTICE OF THE EU OVER CFSP AND EU ACCESSION TO THE ECHR: A HARD NUT ABOUT TO BE CRACKED?

www.eulawlive.com

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

The Limited Jurisdiction of the Court of Justice of the EU over CFSP and EU Accession to the ECHR:

A Hard Nut About to Be Cracked? Thibault Martinelli

Introduction Opinion 2/13, in which the Court of Justice of the European Union ('Court of Justice' or 'Court') found that the dra agreement on European Union ('EU') accession to the European Convention on Human Rights ('ECHR') was incompatible with founding Treaties, unleashed a urry of doctrinal commentaries. (2) While the academic world has gone relatively silent on this question in recent years, the Council of Europe's ad hoc negotiation group on EU accession to the ECHR (the '46+1 group') went back to the drawing board. A er multiple rounds of discussions, negotiators came up, in March 2023, with a revised dra accession agreement, which addresses three of the four 'baskets' of issues raised by the Court in Opinion 2/13. (3) One last sticking point now remains: the socalled 'Basket 4'. In the parlance of the '46+1' group, Basket 4 refers to issues related to the limited jurisdiction of the Court of Justice over the Common Foreign and Security Policy ('CFSP'). Recall that, under Article 24(1) TEU and Article 275 TFEU, the Court's jurisdiction in this policy domain is in principle excluded, except for the review of restrictive measures and for the monitoring of Article 40 TEU – the ring-fencing provision that separates CFSP from the other areas of EU law. In Opinion 2/13, the Court noted that, although there was not yet any case law on this point, it results from Article 24(1) TEU and Article 275 TFEU that some EU acts in the CFSP eld are beyond its jurisdictional purview. For the Court, the European Court of Human Rights (the 'ECtHR') –a non-EU body– may not be exclusively entrusted with the review, in light of fundamental rights, of CFSP acts that fall outside its jurisdiction. (4)

For the Court, the European Court of Human Rights may not be exclusively entrusted with the review, in light of fundamental rights, of CFSP acts that fall outside its jurisdiction

1. Postdoctoral researcher, Salzburg Center of European Union Studies/Faculty of Law, University of Salzburg. 2. Opinion 2/13 of the Court of Justice of 18 December 2014 (2/13, EU:C:2014:2454). 3. Dra revised Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, CDDH(2023) R_EXT Addendum. 4. Opinion 2/13, paras. 249-257.

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

ere are two readily apparent methods to solve Basket 4, suggested by Article 218(11) TFEU: nd a way to adapt the dra accession agreement, or change the Treaties to extend the Court's CFSP jurisdiction. Given the current legal and political context, modifying primary law is out of the question for all, at least for now. (5) EU institutions and States' representatives bent over backwards to solve 'Basket 4' by modifying the accession agreement, but found no convincing way to do so. How then, can we make EU accession to the ECHR a reality and nally solve 'Basket 4' without having recourse to neither of the options laid down in Article 218(11) TFEU? For the last two years, this question has animated intense debates between EU institutions and Member States that put their legal creativity to the test. e pending KS & KD v. Council and other case, which gives the Court an unprecedented opportunity to clarify the extent of its CFSP jurisdiction, has suspended those discussions. (6) Depending on the upcoming ruling of the Court in KS & KD, a solution to Basket 4 might very well be in sight. is Long Read takes stock of those ongoing developments. It rst highlights the strengths and weaknesses of the two proposals currently on the table: the adoption of a CFSP interpretative declaration (1), and the establishment of a CFSP tribunal (2). It then reports on the debates that took place at the oral hearing of the KS & KD case on June 27, 2023 (3).

1. A CFSP interpretative declaration: a poisoned gi to the Court of Justice? e 'Basket 4' solution that initially garnered the widest support among States' representatives involved the adoption of an interpretative instrument. Member States would provide, by way of a common declaration agreed among them, an interpretation of Article 24(1) TEU and Article 275 TFEU to the eﬀect that the jurisdiction of the Court extends to the review of CFSP acts in the light of fundamental rights. Understood this way, the jurisdiction of the Court

Article 6(2) TEU places an obligation upon the EU to accede to the ECHR. To ensure coherence between all the provisions of the Treaties, the restriction on the Court's CFSP jurisdiction should not be read in ways that make it impossible for the EU to ful l its obligation under Article 6(2)

5. See Steering Commi ee for Human Rights, Interim Report to the Commi ee of Ministers, for information, on the negotiations on the accession of the European Union to the European Convention on Human Rights, 4 March 2023, CDDH(2023) R_Extra Addendum. 6. Pending case, KS and KD v Council et al. (C-29/22 P).

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

would be broad enough to encompass any claim that could be led with the ECtHR, so that the la er would no longer be exclusively entrusted with the judicial review of some CFSP acts, in line with the requisites of Opinion 2/13. By November 2022, the Commission and most Member States, France excepted, had rallied behind this idea, for this option has indeed some good arguments going for it. To begin with, Article 6(2) TEU places an obligation upon the EU to accede to the ECHR. To ensure coherence between all the provisions of the Treaties, the restriction on the Court's CFSP jurisdiction should not be read in ways that make it impossible for the EU to ful l its obligation under Article 6(2) TEU. e Court’s CFSP jurisdiction should rather be read as being broad enough to enable the EU to accede to the ECHR. e objective of the declaration appears thus legitimate: to provide an interpretation of the Treaties that resolves the tension between Article 6(2) TEU and the limitations to the Court’s CFSP jurisdiction deriving from Article 24(1) TEU and Article 275 TFEU. (7) In addition, CFSP has an ambiguous status in the EU's architecture: it is a policy fully integrated within the EU legal order, but which also retain its own speci cities. e CFSP’s ill-de ned position makes the intent of the Treaties’ framers diﬃcult to decipher. By including Article 24(1) TEU and Article 275 TFEU in the founding Treaties, did the framers make the choice to maintain a broad jurisdictional carve-out in all CFSP ma ers or did they merely want to insulate sensitive issues of foreign policy from judicial review? As noted by Van Elsuwege, Advocate Generals have provided varying answers on this point in their Opinions. (8) rough this declaration, Member States, acting as ‘masters of the Treaties’, would elucidate their initial intent upon ratifying Article 24(1) TEU and Article 275 TFEU. None of these arguments seems, however, to have convinced France, which has refused to back up the idea of an interpretative declaration ever since the JHA Council held on December 9, 2022. (9) In March 2023, the French Senate adopted a resolution calling the dra declaration an a empt at making a 'cold revision' of the founding Treaties. (10) is declaration, the French Senate believes, would in eﬀect rewrite Article 24(1) TEU and Article 275 TFEU without following the Treaty amendment procedure of Article 48 TEU. In any case, even if we assume that the interpretative declaration contains a legally defensible reading of the Treaties, it is doubtful that this instrument would provide a sound enough basis to enable EU accession to the ECHR. In Opinion 2/13, the Court signaled that it would have to clarify itself the contours of its jurisdiction over CFSP ma ers, but there had been no opportunity to do so yet. (11) With this interpretative declaration, Member States

7. See Opinion, Council Legal Service, 16 June 2022, doc n° 10360/22. 8. See Peter Van Elsuwege, 'Judicial Review and the Common Foreign and Security Policy: Limits to the Gap-Filling Role fo the Court of Justice', Common Market Law Review 58, 2021, pp. 1731-1760, at pp. 1738-1741. Compare, for example, Advocate General Wahl's Opinion of 7 April 2016 in H v. Council (C-455/14 P, EU:C:2016:212, points 63-64) with Advocate General Wathelet's Opinion of 31 May 2016 in Rosene (C-72/15, EU:C:2017:236, point 52). 9. Jean-François Rapin, Rapport sur le volet relatif à la politique étrangère et de sécurité commune des négociations d'adhésion de l'Union européenne à la Convention européenne de sauvegarde des droits de l'homme et des libertés fondamentales, N° 308, Session ordinaire 2022-2023. 10. Résolution européenne sur le volet relatif à la politique étrangère et de sécurité commune des négociations d'adhésion de l'Union européenne à la CEDH, JORF, 8 mars 2023. 11. Opinion 2/13, para. 251.

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

would substitute themselves to the Court and provide an interpretation of EU law in its place. is way of proceedings is a questionable method of forcing the Court’s hands. Article 19 TEU makes clear that it is for the Court to say what ‘the law’ is. From this perspective, the CFSP declaration is a poisoned gi that the Court would not happily accept. Granted, it would provide a broad reading of the Court’s jurisdiction over CFSP ma er, but it would also, in so doing, undermine its monopoly over the interpretation of the founding Treaties.

e founding Treaties, unlike ‘traditional’ treaties, are not malleable instruments of sovereign will, whose understanding Member States may that easily bend, but they form the basis of an autonomous order that has a legal existence of its own

e wording and precise content of the dra CFSP declaration have not been released to the public. And the Council Legal Service's Opinion on its compatibility with the Treaties is only partially accessible. (12) Despite the lack of available legal details, it seems clear that the dra declaration takes inspiration from the defunct UK New Se lement, an agreement signed by all Member States in 2016 to assuage some British concerns over UK membership to the Union, in anticipation of the Brexit referendum. (13) is instrument, which never entered into force, contained provisions of various natures, including some aimed at interpreting a series of Treaties’ provisions. (14) Similarly to the UK New Se lement, the legal force of the dra CFSP declaration derives presumably from the methods of treaties’ interpretation laid down in the Vienna Convention on the Law of Treaties ('VCLT'). Like the UK New Se lement, this dra declaration quali es as a ‘subsequent agreement’ between the contracting parties which, as part of the broader context of a treaty, may inform the scope of its provisions (Article 31(3)(a) VCLT). However, the Court has never acknowledged that this VCLT’s interpretative technique is part of its own hermeneutics, and understandably so. e founding Treaties, unlike ‘traditional’ treaties to which the VCLT applies, are not malleable instruments of sovereign will, whose understanding Member States may that easily bend, but they form the basis of an autonomous order that has a legal existence of its own.

12. See Opinion of Council Legal Service, 16 June 2022, doc n° 10360/22, available here. 13. 'A New Se lement for the United Kingdom within the European Union' OJ 2016 C 69 I, p. 1. 14. For an analysis, see Alan Dashwood, 'A "Legally Binding and Irreversible" Agreement', Henderson Chambers, 19 February 2016.

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

Back in 2016, the Council Legal Service argued that the Ro mann case backs the interpretative authority of the UK New Se lement. (15) In Ro mann, the Court noted in passing that the Edinburgh Agreement, an instrument signed by Member States at the time of the rati cation of the Maastricht Treaty, was a relevant tool to interpret the founding Treaties. (16) But this Court's ruling is no convincing precedent. e timing of the Edinburgh Agreement’s signature sets it apart from the UK New Se lement and the dra CFSP declaration. e Edinburgh Agreement is not a ‘subsequent agreement’ under the VCLT, but an agreement signed ‘in connection with the conclusion of a treaty’ (Article 31(3)(a) VCLT). is is a material diﬀerence from a legal standpoint. e Edinburgh Agreement clari es the scope of the Maastricht Treaty, at a time where it had not yet been fully rati ed. e UK New Se lement, and the dra CFSP declaration, however, openly challenge the Court's monopoly over the interpretation of primary law provisions that are already in force. Furthermore, the UK New Se lement was not really designed to signi cantly bend the Court’s interpretation of the founding Treaties. Rather, the aim of its interpretative provisions was largely to endorse the existing case law of the Court, in particular segments of the Dano and Alimanovic rulings. (17) But the dra CFSP declaration, by contrast, would establish a novel reading of the Treaties that has no explicit basis in the Court's case law.

2) French counterproposal: a ‘CFSP tribunal’ e French ‘veto’ over the dra CFSP declaration has led the Council to consider alternative options as well. In spring 2023, France tabled another idea that does not require to stretch the jurisdiction of the Court of Justice over CFSP ma er: the establishment of a separate CFSP tribunal. e starting point of this proposal is the View of Advocate General ('AG') Koko in Opinion procedure 2/13. (18) In her View, the AG argues that, based on Article 274 TFEU, national courts should be competent to review

Union acts in the CFSP eld that Articles 24 TEU and 275 TFEU place outside the scope of the Court's jurisdiction. Diﬀusing the responsibility for the judicial review of CFSP action among national courts endangers the uniform application of EU law, as national case law as on the legality of CFSP acts might vary from a Member State to another. But, for the AG, this pitfall is inherent in the current Treaty architecture and the speci c characteristics of CFSP as they now stand. To address this fragmentation risk, France suggests centralising the judicial review of CFSP acts falling beyond the Court’s jurisdiction, by transferring this task from national courts to a single judicial forum. For France, this ‘CFSP tribunal’ could be: • the highest court of the Member State holding the Council presidency at the time of the facts giving rise to the case, or • a newly established court common to the Member States, modelled upon the Uni ed Patent Court.

15. Opinion of the Legal Counsel, 8 February 2016, EUCO 15/16, p. 8. 16. Judgement of the Court of Justice of 2 March 2010, Ro mann (C-135/08, EU:C:2010:104). 17. Judgement of the Court of Justice of 11 November 2014, Dano (C-333/13, EU:C:2014:2358); Judgement of the Court of Justice of 15 September 2015, Alimanovic (C-67/14, EU:C:2015:597). 18. Advocate General Koko 's View of 13 June 2014 in Opinion 2/13 (EU:C:2014:2475, points 96-103).

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

In spring 2023, France tabled another idea that does not require to stretch the jurisdiction of the Court of Justice over CFSP ma er: the establishment of a separate CFSP tribunal

For both options, there would be a mechanism of systematic preliminary ruling request. e CFSP tribunal would send all its cases rst to the Court of Justice to let it assess whether they fall within its jurisdiction under Article 24(1) and Article 275 TFEU. Only when the Court of Justice nds that it has no jurisdiction, would the cases be sent back to the CFSP tribunal for a decision. is proposal would presumably ful l the requisites of Opinion 2/13. e ECtHR would no longer be exclusively entrusted with the task of reviewing CFSP action. e CFSP tribunal, situated within the EU judicial framework, would also be able to do so in cases that cannot be heard by the Court of Justice for want of jurisdiction. But this byzantine judicial construct would have numerous legal and practical drawbacks. First, there is no obvious legal basis in the founding Treaties to establish a new CFSP tribunal or a system of rotating national court tasked with the judicial review of CFSP acts. Member States would thus have to conclude an agreement among them on this point. e negotiation and rati cation processes of this instrument would be lengthy. Meanwhile, multiple national courts might potentially handle CFSP cases, with the risk of seeing diverging national case laws develop. Second, the Court has never endorsed the view expressed by AG Koko in Opinion procedure 2/13

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

and acknowledged that national courts may review acts of the Union that fall beyond its jurisdiction. Whether a new CFSP tribunal, or a rotating national court, could do so is equally debatable. ird, the powers that this CFSP tribunal could enjoy are unclear. AG Bobek considers that national courts do not have the power to annul CFSP acts adopted by EU institutions that fall beyond the Court’s jurisdiction. (19) Quite logically, the CFSP tribunal, to which national courts' task of judicial review would be transferred, would not enjoy that power either. What it could possibly do though is to suspend the application of unlawful CFSP acts vis-à-vis the applicants and leave it to the EU institutions to amend or repeal them. Besides these general considerations, the rst option suggested by France, that of rotating national court, poses its own set of challenges. How could rotating national courts develop a coherent case law on CFSP issues? Given their purely national composition and their limited linguistic capacity, are national courts ideally placed to assess the validity of Union acts? e independence of supreme courts in some Member States is not beyond doubt. Would it be wise to entrust them with this important task? Can we demand of applicants, EU institutions, and intervening Member States to travel around Europe to litigate CFSP cases? e second option, that of a new CFSP tribunal, obviates those questions but raises new ones. How would the agreement between Member States establishing this tribunal guarantee the autonomy of the EU legal order? From the Court’s case law, this judicial construct would be valid under EU law, and satisfy the requisites of Opinion 2/13, only if it quali es as ‘a court common to the Member States’ that forms part of the judicial framework of the Union. (20) e CFSP tribunal would be modelled upon the Uni ed Patent Court, whose validity has up until now never been con rmed by the Court. e only ‘court common to the Member States’ that the Court of Justice has ever validated is the Benelux Court of Justice. But there would be key diﬀerences between the CFSP tribunal and the Benelux Court of Justice. (21) e la er is competent to answer preliminary ruling requests from the Benelux national courts on the interpretation of Benelux law only. As such, procedures before the Benelux Court of Justice are ‘merely a step in the proceedings before the national courts’. (22) In contrast, there would presumably be no procedural link between the judicial systems of the Member States and the CFSP tribunal. In proceedings independent from procedures before national courts, the CFSP tribunal would be directly tasked to review the lawfulness of Union action in the CFSP domain. is characteristic of the Benelux Court, that the CFSP tribunal would lack, might well be a decisive distinguishing factor in the Court's mind. In Achmea, the Court seems to consider that an adjudicating body may not qualify as a 'court common to the Member States' in the same way as the Benelux Court of Justice, unless it is procedurally connected to national courts. (23)

19. See Advocate General Bobek's Opinion of 19 March 2020 in SatCen v. KF (C-455/14 P, EU:C:2016:569, points 101-104). 20. See Opinion of the Court of 8 March 2011 (1/09, EC:C:2011:123, para 82). 21. Judgement of the Court of Justice of the 4 November 1997, Parfums Christian Dior (C-337/95, EU:C:1997:517). 22. Ibid., paras. 41-42. 23. Judgement of the Court of 7 April 2016, Achmea (C-284/15, EU:C:2018:158, para 48).

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

3) KS & KD v Council & others: a solution coming from the Court? Ongoing litigation has now moved the debate over Basket 4 from Council meetings to the Court of Justice's courtroom. In the a ermath of Opinion 2/13, the Court has gradually clari ed its CFSP jurisdiction through a careful piecemeal approach. (24) In its case law, the Court held that Article 24(1) TEU and Article 275 TFEU, as exceptions to its general jurisdiction over EU law under Article 19 TEU, should be read narrowly. On that basis, it asserted jurisdictional authority over measures of staﬀ management and public procurement taken by CFSP missions in third countries, which, although formally based on the Treaties’ CFSP provisions, do not have per se a CFSP substance. (25) e pending KS & KD case now gives the Court the unprecedented opportunity to stretch its CFSP jurisdiction much further. (26) In this case, the applicants sue the Council, the Commission, and the EEAS to obtain compensation for alleged violations of human rights commi ed by Eulex Kosovo, a CFSP mission entrusted with the executive mandate to ensure inter alia the proper prosecution of war crimes in Kosovo. In contrast with previous cases, this action for damages against EU institutions for violation of human rights touches at the very core of what CFSP is all about, namely the design and execution of a CFSP mission in a third country. If the Court decides to assert jurisdiction over this case, it might well, in doing so, delineate its judicial powers in CFSP ma ers in a wide enough manner to ensure that any human right case that goes to Strasbourg may be heard in Luxembourg rst, in line with the requisites articulated in Opinion 2/13. A ruling along those lines would resolve Basket 4 and obviate the need for an interpretative declaration or a new judicial construct to hear CFSP cases. e possible rami cations of the KS & KD case for ECHR accession have stirred substantial interest, prompting eight Member States to intervene in the procedure. e hearing that took place on June 27 revealed a ri between France, on the one hand, which vetoed the interpretative declaration, and the Commission and all the other intervening Member States, on the other, which supported it. e French agent was the only one arguing that the Court should stick to the le er and ordinary meaning of Article 24(1) TEU and Article 275 TFEU, with the consequence that any act of the Union that has a genuine CFSP substance should remain immune from the review of EU courts. But this is no obstacle to ECHR accession, he claimed. To support his view, he reiterated the content of the French proposal made to the Council: national courts should step in to review CFSP action of the Union where the Court of Justice cannot and the establishment of a common CFSP court that could se le CFSP disputes would alleviate the risk of divergent natio-

24. See, in chronological order, Judgement of the Court of Justice of 12 November 2015, ElitalianaSpA v Eulex Kosovo (C-439/13 P, EU:C:2015:753; Judgement of the Court of Justice of 19 July 2016, H v Council (C-455/14 P, EU:C:2016:569); Judgement of the Court of Justice of 28 March 2017, Rosene Oil Company v. Her Majesty's Treasury and Others (C-72/15, EU:C:2017:236); Judgement of the Court of Justice of 25 June 2020, SatCen v. KF (C-14/19 P, EU:C:2020:492); Judgement of the Court of Justice of 6 October 2020, Bank RefahKargaran v. Council (C-134/19 P, EU:C:2020:793). 25. On this point, see Advocate General Bobek'sOpinion of 19 March 2020 in SatCen v KF (C-14/19 P, EU:C:2020:220, point 61). 26. Joined Cases C-29/22 P & C-44/22 P, KS and KD v Council and others, OJ 2022 C 109, p. 18 (pending). ose two cases pertain to appeals by the Commission and the KS and KD against the Order of the General Court of 10 November 2021, KS and KD v. Council and others (T-771/20, EU:T:2021:798).

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

nal case laws. Advocate General Ćapeta asked a series of questions to the French agent on this issue that uncovered some of the risks that this proposal would pose for the unity and integrity of EU law. e Commission's agent also took the oor to object to the idea of a CFSP tribunal, which, in his view, would be incompatible with the founding Treaties, and the Court's case law on the autonomy of the EU legal order. All the other parties spoke in unison to a great extent: the Court has jurisdiction to scrutinise alleged violations of human rights commi ed by EU institutions in the context of the CFSP. Based on a convincing line of arguments, the Commission, along with numerous Member States, argued that the Court should adopt a contextual and systemic reading of the Article 24(1) TEU and Article 275 TFEU that accounts for the numerous provisions of the Treaties and the Charter that protect human rights and the rule of law, and that enshrines the right to an eﬀective access to legal remedies. (27) Recalling Les Verts, the Commission’s agent claimed that in a Union based on the rule of law, there should be a complete system of remedies which should entitle individuals to obtain compensation from the Union when its CFSP action violates fundamental rights. (28) To avoid any fragmentation in the protection of human rights across the Union, and to ensure the uniform application of EU law, action for damages of this kind should be the exclusive province of the Court, not that of national courts. Remarkably, the Council was open to the prospect of the Court of Justice asserting jurisdiction over a case like KS & KD. e Council’s agent acknowledged that the French proposal would be complex to implement and went on to present arguments most likely modelled upon the ones contained in the dra CFSP declaration. He invoked Article 6(2) TEU to argue that the Court could play the role of ‘human rights court’ in CFSP ma ers. ‘ e EU has an obligation to accede to the ECHR à traités constants’, he stressed. On this basis, he claimed that restrictions to the Court's CFSP jurisdiction under Article 24(1) TEU and Article 275 TFEU should be understood narrowly, in ways that make it possible for the EU to accede to the ECHR à traités constants. erefore, the agent concluded, EU courts could be competent to hear any human rights claims, including those arising in the CFSP context, to the extent that the ECtHR would have jurisdiction to hear such claims following EU accession to the ECHR. is way, Article 6 TEU may be reconciled with Article 24(1) TEU and Article 275 TFEU. Additional arguments made at the oral hearing might strike a chord with the Court. Multiple parties (including the Commission, KS & KD, Belgium and the EEAS) referred to the Ledra case in their pleadings. (29) In Ledra, the Court held itself competent to review alleged breaches of fundamental rights commi ed by EU institutions when they act outside the EU constitutional framework, in the context of the European Stability Mechanism. For many parties, it proceeds logically from that case law that, a fortiori, the Court may hear similar claims when the EU institutions act within the EU framework in the CFSP context. e Council and the Commission also underlined that, if the Court does not assert its jurisdiction over cases like KS & KD, the risk highlighted in Opinion 2/13 will materialise. KS & KD's claim has already been turned down

27. Provisions cited by the parties include Articles 2, 3, 5, 6, 21, 23 TEU and Articles 268 340, 341 TFEU, as well as Article 47 of the Charter. 28. Judgement of the Court of Justice of 23 April 1986, Les Verts (294/83, EU:C:1986:166). 29. Judgment of the Court of Justice of 20 September 2016, Ledra Adervtising Ltd and Others ( Joined Cases C-8/15 P to C-10/15 P, EU:C:2016:701).

10 10

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

by an English court for want of jurisdiction. A er the Court's ruling, all domestic remedies will be exhausted. If the Court denies a legal remedy to KS & KD, they will most likely decide to knock on the doors of the ECtHR, which will pronounce itself on the compatibility of Union action with human rights without the Court of Justice having been able to do so beforehand. If the Court decides to nd KS & KD's claim admissible, it will face the difficult task of designing practicable, clear, and sound criteria to delineate the scope of its jurisdiction. e Commission, supported by other intervening Member States like Romania, argued that the Court may hear any action based on a ‘genuine human rights claim’, even when they arise in a CFSP context. In essence, the scope of the Court's jurisdiction over CFSP ma ers for breaches of human rights would be modelled upon the one of the ECtHR in similar cases. (30) However, this delineating criterion raises several challenges brought to light at the Court's hearing, of which two deserve mention: First, in its existing case law, the Court de nes the scope of its jurisdiction by reference to the CFSP substance of the act at stake in the case. is time is it the nature of the ground for action –the alleged violation of a human right– that would delineate the reach of its jurisdiction. is means that the Court might have to examine the substance of a claim, at least super cially, and therefore enter the facts of the case, before being able to establish its own jurisdiction. Second, how to account for Article 24(1) TEU and Article 275 TFEU in this analysis? Views on this point seem to vary. e Commission argues that all human rights claims, even when they arise in a CFSP context, fall outside the scope of the derogation to the Court's general jurisdiction laid down in those provisions. For its part, the Council insists that, to preserve the effet utile of Article 24(1) TEU and Article 275 TFEU, judicial review should be limited in scope and intensity. Only the implementation of CFSP acts falls under the purview of the Court. CFSP acts of general application do not. Other parties seem to favour other criteria. In their views, it is acts that re ect foreign policy choices, or that entail strategic decisions of an intrinsic CFSP nature, that are beyond judicial review by the Court. Providing general and exhaustive criteria of this kind might tie the Court’s hands. For that reason, the Court might be tempted, as the applicants' lawyer suggested in his pleadings, to show judicial restraint and hear KS & KD's claim on narrow grounds without making broad assertions as to the scope of its jurisdiction over human rights' violations that take place in a CFSP context. In this scenario, the ruling might not suffice to solve Basket 4 without waiting for the case law to develop further. However, as highlighted by the French agent before the Court, acknowledging the admissibility of KS & KD's claim on narrow grounds would be intricate because ‘the acts of Eurlex Kosovo at stake in the case cannot really be detached from the general conduct of CFSP policy’. Asserting jurisdiction in this case would open a breach that necessarily implies that the Court has much broader powers of judicial review over CFSP ma ers than once thought.

30. E.g. Judgement of the ECtHT of 7 May 2021, Xero Flor v. Poland (application no. 4907/18, CE:ECHR:2021:0507JUD000490718, para 187).

11 11

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

Asserting jurisdiction in this case would open a breach that necessarily implies that the Court has much broader powers of judicial review over CFSP ma ers than once thought

Conclusion At the hearing in the KS & KD case, most parties seemed eager to see the Court endorse a broad reading of its judicial power over CFSP actions, along the lines of the one most likely laid down in the dra CFSP declaration. A ruling of this kind would conveniently free Member States and EU institutions from the onus of nding a solution to Basket 4. e French veto over the CFSP declaration would be bypassed and all the controversy that the adoption of this instrument would have triggered would be avoided. Back in 2015, Opinion 2/13 was criticised for possibly being a ‘strategic move’ on the part of the Court of Justice to provoke ‘a modi cation of those unloved provisions of the Treaties that limit its judicial powers’. (31) Eight years later, the hearing in KS & KD revealed how much of success this strategic move turns out to be: many Member States, the Commission, and the Council now call for the narrowest possible reading of those provisions to enable ECHR accession à droit primaire constant.

Many Member States, the Commission, and the Council now call for the narrowest possible reading of those provisions to enable ECHR accession à droit primaire constant

In any case, it would also be quite ing for the Court to itself provide the way to overcome the hurdle to ECHR accession that it erected in Opinion 2/13. Advocate General Ćapeta, who will deliver the Opinion in KS & KD on November 23 of this year, will soon give us an indication in this respect.

31. 'Editorial Comments -

e EU's Accession to the ECHR - a "No" from the ECJ!', Common Market Law Review 52, pp. 1-16 at p. 16.

12 12

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

News Highlights 23 to 27 October 2023

Council publishes its conclusions regarding the revised EU list for noncooperative jurisdictions for tax purposes

Commission Recommendation on energy poverty, published in OJ Monday 23 October

READ MORE ON EU LAW LIVE

Oﬃcial publication was made of Commission Recommendation (EU) 2023/2407 of 20 October 2023 on energy poverty, in which the European Commission emphasizes the growing issue of energy poverty in the European Union and the need for comprehensive measures to address it.

Monday 23 October

READ MORE ON EU LAW LIVE

Oﬃcial publication was made of the Council’s conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes, underlining the importance of promoting and strengthening good governance standards in the area of fair taxation and tax transparency.

General Court to hear two actions for annulment concerning Council Regulation (EU) 2022/2577 and the Aarhus Convention

Actions against decisions of the Board of Appeal of the EU Agency for Cooperation of Energy Regulators, published in the OJ

Monday 23 October

READ MORE ON EU LAW LIVE

Oﬃcial publication was made of two actions for annulment brought by two environmental protection organizations, Föreningen Svenskt Landskapsskydd and CEE Bankwatch Network, alongside others, contesting decisions made by the Council regarding the admissibility of their requests for internal review concerning environmental regulations: Föreningen Svenskt Landskapsskydd and Others v Council (T-534/23) and CEE Bankwatch Network and Ökobüro v Council (Case T-535/23).

READ MORE ON EU LAW LIVE

Oﬃcial publication was made of three actions for annulment, brought on 8 September 2023 by Swissgrid against the EU Agency for the Cooperation of Energy Regulators seeking the annulment of three decisions of the Board of Appeal of ACER in three cases dismissing as inadmissible the appeal of the applicant against the three respective decisions adopted by ACER: Swissgrid v ACER (T-556/23; T-557/23; T-558/23).

13 13

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

Preliminary reference on the compatibility of national legislation, concerning investigation procedures seeking to establish an unfair commercial practice, with EU law

Preliminary ruling request concerning refugee status revocation and security threats, published in OJ Monday 23 October

READ MORE ON EU LAW LIVE

A request for a preliminary ruling was led by the Dioikitiko Dikastirio Diethnous Prostasias in Cyprus, involving an applicant, K.A.M., challenging the decision to revoke his refugee status granted by the Asylum Service.

Monday 23 October

A request for a preliminary ruling from the Regional Administrative Court of Lazio, Italy, lodged on 8 August 2023, concerning the interpretation of the Unfair Commercial Practices Directive was oﬃcially published: Trenitalia (C-510/23).

Preliminary reference concerning protection of exchanges between lawyers and their clients, in the context of requested information in the eld of taxation, published in OJ Monday 23 October

Council adopts new rules to protect workers from asbestos-related risks at work Monday 23 October

READ MORE ON EU LAW LIVE

Following a proposal from the Commission, the Council formally adopted a directive on the protection of workers from the risks related to exposure to asbestos at work, as part of a package aimed at ensuring an asbestos-free future for EU citizens.

READ MORE ON EU LAW LIVE

Oﬃcial publication was made of a preliminary ruling request from the Administrative Court, Luxembourg, lodged on 12 July 2023, concerning, essentially, clari cation on whether legal advice provided by a lawyer on ma ers of company law falls within the meaning of Article 7 of the Charter of Fundamental Rights: Ordre des avocats du Barreau de Luxembourg (C-432/23).

Anti-Coercion Instrument adopted by the Council

EU adopts restrictive measures in light of the a ermath of the military coup in Niger Monday 23 October

READ MORE ON EU LAW LIVE

Monday 23 October

READ MORE ON EU LAW LIVE

e Council approved a new regulation designed to protect the EU and the Member States from economic coercion by third countries.

READ MORE ON EU LAW LIVE

e Council adopted a new framework for restrictive measures, given the situation in Niger, the aim of which is to make it possible for the EU to sanction individuals and entities responsible for threatening peace, stability, and security, and undermining the constitutional order, democracy, the rule of law, and human rights.

14 14

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

Amending rules on administrative exchange of information in the eld of taxation, published in OJ Tuesday 24 October

Commission signs agreements with French and Irish Media Regulators for Digital Services Act enforcement support

READ MORE ON EU LAW LIVE

Oﬃcial publication was made of Council Directive 2023/2226, amending Directive 2011/16/EU, the aim of which is to amend rules concerning the rules and procedures under which the Member States cooperate with each other, with a view to exchanging information that is foreseeably relevant to the administration and enforcement of the domestic laws of the Member States concerning the taxes.

Tuesday 24 October

EDPB and EDPS issue a jointly opinion on the proposed Regulation on the digital euro

Council Implementing Decision extending temporary protection for displaced persons from Ukraine, published in OJ

Tuesday 24 October

READ MORE ON EU LAW LIVE

e Commission services entered into administrative arrangements with the media regulators of France and Ireland to enhance their ability to oversee and enforce the Digital Services Act.

READ MORE ON EU LAW LIVE

e European Data Protection Board and the European Data Protection Supervisor jointly issued an opinion on the proposed Regulation for the digital euro, a central bank digital currency designed to enable electronic payments.

Tuesday 24 October

Court of Justice streaming hearing today of case on appeal concerning Front Polisario’s possibility to challenge a decision of the Council before the Union Courts

ECtHR rules against Poland's lower retirement age for female judges

Tuesday 24 October

READ MORE ON EU LAW LIVE

Oﬃcial publication was made of Council Implementing Decision 2023/2409 extending temporary protection, as introduced by Implementing Decision 2022/382, which has established the existence of a mass in ux of displaced persons from Ukraine, and introduced temporary protection in that regard.

Tuesday 24 October

READ MORE ON EU LAW LIVE

e ECtHR delivered its judgment in the case of Pająk and Others v. Poland (applications nos. 25226/18, 25805/18, 8378/19 and 43949/19) concluding that Poland's legislative amendments to lower the retirement age for female judges to 60, in contrast to 65 for male judges, are in violation of the European Convention on Human Rights.

READ MORE ON EU LAW LIVE

e Court of Justice’s Grand Chamber hearing in Commission v Front Polisario and Council v Front Polisario (Joined cases C778/21 P; C-798/21 P and C-779/21 P; C-799/21 P was streamed on the Court of Justice’s website.

15 15

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

General Court annuls Commission Decision nding abuse of dominant position in relation to exclusive operation of Romanian Pipeline 1 by Bulgargaz

ESA’s Joint Board of Appeal suspends ESMA's Decision on Dubai Commodities Clearing Corporation's recognition withdrawal

Wednesday 25 October

READ MORE ON EU LAW LIVE

e General Court, si ing in its Extended Composition formation, delivered its judgment in Bulgarian Energy Holding and Others v Commission (T-136/19), a case concerning an action, essentially, seeking the annulment of the Commission Decision C(2018) 8806, relating to proceedings under Article 102 TFEU, as well as the annulment or reduction of the ne imposed in that regard.

e Board of Appeal of the European Supervisory Authorities (ESMA) rendered its decision regarding the Dubai Commodities Clearing Corporation (DCCC) and the suspension of ESMA's decision to withdraw the recognition of DCCC as a Tier 1 third-country Central Counterparty (CCP) under Article 25 of the European Market Infrastructure Regulation (EMIR).

Regulation on establishing an instrument for the reinforcement of the European defence industry through common procurement (EDIRPA), published in OJ

A public prosecutor may issue a European Investigation Order for the transfer of evidence gathered in another Member State, holds AG Ćapeta

ursday 26 October

READ MORE ON EU LAW LIVE

AG Ćapeta delivered her Opinion in Staatsanwaltscha Berlin (EncroChat) (C-670/22), a case concerning the interpretation of the European Information Order Directive (Directive 2014/41/EU).

Oﬃcial publication was made of Regulation (EU) 2023/2418 of the European Parliament and of the Council of 18 October 2023 on establishing an instrument for the reinforcement of the European defence industry through common procurement.

Commission Recommendation on coordinated response to incidents stemming from the dissemination of illegal content online, published in OJ ursday 26 October

READ MORE ON EU LAW LIVE

Holding companies that primarily manage holdings in non- nancial businesses are not “ nancial institutions” under Directive 2013/36 and Regulation No. 575/2013: Court of Justice ursday 26 October

Oﬃcial publication was made of Commission Recommendation 2023/2425 on coordinating responses to incidents in particular arising from the dissemination of illegal content, ahead of the full entry into application of the Digital Services Act.

READ MORE ON EU LAW LIVE

e Court of Justice delivered its judgment in Lineas – Concessões de Transportes (Joined cases C-207/22, C-267/22 and C-290/22) concerning the taxation of credit transactions.

16 16

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

Court of Justice: GDPR precludes national rules imposing obligation on the data subject to pay a fee to receive a rst copy of medical records ursday 26 October

Court of Justice rules on VAT for public broadcasting activity ursday 26 October

e Court of Justice delivered its judgment in GIS (C-249/22) concerning the interpretation of Council Directive 2006/112/EC on the common system of value-added tax (VAT), in conjunction with the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland, and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded.

READ MORE ON EU LAW LIVE

e First Chamber of the Court of Justice rendered its judgment in FT (Copies of medical records) (C-307/22), a case regarding a preliminary ruling request from the German Federal Court of Justice, whereby clari cation was sought on the compatibility, with the GDPR, of a national measure allowing a dentist to charge her patient for requesting a rst copy of his medical le.

Agreement between retailer of consumer goods and electricity supplier may constitute non-competition clause if suﬃciently harmful to competition, holds Court of Justice

AG Collins’ Opinion concerning compensation for non-material damage in data the cases under GDPR ursday 26 October

READ MORE ON EU LAW LIVE

ursday 26 October

READ MORE ON EU LAW LIVE

Advocate General Collins delivered his Opinion in Scalable Capital (C-182/22) concerning a preliminary ruling request featuring two separate actions brought by individuals against Scalable Capital GmbH, pertaining to the right to compensation for non-material damage caused by the the of personal data stored in a trading application.

e Court of Justice delivered its judgment in EDP – Energias de Portugal and Others (C-331/21), a case concerning a preliminary ruling request regarding the interpretation of Article 101 TFEU and Article 1(1)(a) and (c) of Commission Regulation 330/2010 on the application of Article 101(3) TFEU to categories of vertical agreements and concerted practices.

Very Large Online Platforms and Search Engines due to publish rst transparency reports, pursuant to the DSA

Representatives of bene ciaries of fraudulently obtained agricultural aid are required to repay those funds, suggests AG Pitruzzella

ursday 26 October

READ MORE ON EU LAW LIVE

Advocate General Pitruzzella delivered his Opinion in Eesti Vabariik (Põllumajanduse Registrite ja Informatsiooni Amet) (C-437/22), a case concerning a preliminary ruling request, whereby clari cation was sought regarding the concept of ‘bene ciary’ within the meaning of several EU secondary law provisions, in respect of a claim for repayment of fraudulently obtained agricultural aid to be nanced by the EU.

Designated ‘Very Large Online Platforms’ and ‘Very Large Online Search Engines’ are due to publish their rst transparency reports, under the Digital Services Act (‘DSA’), with the rst seven platforms, namely Amazon, LinkedIn, TikTok, Pinterest, Snapchat, Zalando, and Bing having already done so.

17 17

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

HANN-INVEST: AG Pikamäe delivers Opinion on outer limits of Article 19(1) TEU ursday 26 October

AG Richard de la Tour clari es scope of Directive 2003/109 in a case involving entry ban for public security reasons ursday 26 October

READ MORE ON EU LAW LIVE

Advocate General Pikamäe delivered his Opinion in HANNINVEST and Others (Joined Cases C-554/21, C-662/21 and C-727/21), a preliminary reference, where the Commercial Court of Appeal of Croatia referred a question on the compatibility of Article 177(3) of the Rules of Procedure of the Courts with Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights.

Advocate General Richard de la Tour delivered his Opinion in EP v. Maahanmuu oviraasto (C-752/22), a preliminary reference from the Supreme Administrative Court in Finland concerning the interpretation of Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents.

State Aid approval decisions in the Oﬃcial Journal

Legislative provisions on the labeling of organic pet food, published in OJ

Friday 27 October

READ MORE ON EU LAW LIVE

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

Oﬃcial publication was made of Regulation 2023/2419 of the European Parliament and Council on the labeling of organic pet food, which lays down speci c labeling requirements for pet food produced pursuant to the rules concerning the organic production of feed provided for in Regulation (EU) 2018/848.

Regulation on the protection of geographical indications for cra and industrial products, published in OJ

European Council releases conclusions on Middle East

Friday 27 October

READ MORE ON EU LAW LIVE

On October 26, 2023, the EU leaders issued a set of conclusions on the Middle East, within the context of the European Council summit.

Oﬃcial publication was made of Regulation 2023/2411 of the European Parliament and Council on the protection of geographical indications for cra and industrial products and amending Regulations (EU) 2017/1001 and (EU) 2019/1753.

18 18

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

e ESAs publish joint criteria on the independence of supervisory authorities

European Council summit: EU leaders adopt conclusions on the Multiannual Financial Framework

Friday 27 October

READ MORE ON EU LAW LIVE

Following the unprecedented and unexpected challenges the EU has faced, ranging from the consequences of Russia’s war on Ukraine to an acceleration in in ation and interest rates and challenges related to migration, the EU leaders adopted conclusions on the Multiannual Financial Framework for 20212027 in regards to the most pressing needs and how to nance future priorities.

In response to the need for robust and transparent supervisory processes in the nancial sector, the three European Supervisory Authorities– the European Banking Authority, the European Insurance and Occupational Pensions Authority, and the European Securities and Markets Authority published their joint criteria on the independence of supervisory authorities.

Insights, Analyses & Op-Eds

Selecting the seat of EU agencies – one year a er the judgments of the Court of Justice by Tomáš Buchta

READ MORE ON EU LAW LIVE

Op-Ed, part of a Symposium on EU Agencies, focusing on the challenging before the Court of Justice of the intergovernmental decisions to establish the seats of the European Medicine Agency and the European Labour Authority.

19 19

Is there any exhaust valve? e General Court’s ruling on geo-blocking practices in the video games’ industry (T-172/21) by Guilherme Oliveira e Costa

READ MORE ON EU LAW LIVE

Analysis of the General Court’s judgment in Valve v Commission (T-172/21), a case where, according to the author, the Court delivered a comprehensive judgment trying to keep competition law concerns in mind, even when they were intertwined with the reality of copyright.

Nº160 · OCTOBER 28, 2023

Weekend

Edition stay alert keep smart

e fate of a revocation of an authorisation to engage in activities as a wholesaler in medicinal products when the necessary requirements are, once again, met (C-47/22, Apotheke B.) by Ayana Dootalieva

READ MORE ON EU LAW LIVE

e principle of sincere cooperation in Article 4(3) TEU cannot justify competence creeping in direct tax ma ers (C-15/22, RF v Finanzamt) by Ricardo García Antón

READ MORE ON EU LAW LIVE

Analysis of the Court of Justice’s judgment in Apotheke B. (C-47/22), a case concerning a preliminary ruling, where the Court interpreted the provisions concerning authorisations under Directive 2001/83 related to medicinal products for human use.

Op-Ed on the Court of Justice’s judgment in RF v Finanzamt (C-15/22), a case where the Court, as highlighted by the author, restrained itself under scrupulous legal reasoning preserving the rule of law, and therefore the tax sovereignty of the Member States, instead of following the Opinion of AG Medina, which would have resulted a devastating EU law earthquake.

e long story of Belgian Excess Pro t exemption and State Aid in Taxation (T-131/16 RENV)

Consumer (dis)satisfaction as a trigger of commercial guarantees – C-133/22 LACD

by Almut Breuer

by Madalena Narciso

READ MORE ON EU LAW LIVE

Op-Ed on why the so-called ‘excess pro t exemption’, a Belgian tax practice by which multinational groups could exempt a certain percentage of their pro ts from Belgian corporate income tax, has been considered to constitute State aid by the General Court.

Analysis of the Court of Justice’s judgment in LACD (C-133/22), a case, which, according to the author, is relevant from a consumer law perspective as it addresses the common statement ‘we guarantee complete satisfaction or you get your money back’.

Avoiding formalistic limitations to the scope of the European ne bis in idem: e Court of Justice on the assessment of the idem factum criterion (C-726/21, Inter Consulting)

Bilateral agreement with a third state might preclude party autonomy provided for the testator in the EU Succession Regulation (OP, C-21/22)

by Stefano Montaldo

READ MORE ON EU LAW LIVE

Analysis of the Court of Justice’s judgment in Inter Consulting (C-726/21), a case concerning a question referred for a preliminary ruling, the answer of which, as highlighted by the author, would have signi cant implications on the scope of the ne bis in idem principle

20 20

by Anna Wysocka-Bar

READ MORE ON EU LAW LIVE

Analysis of the Court of Justice’s judgment in OP (C-21/22), a case concerning a preliminary ruling request from a Polish court, seeking clari cation on the application of the Succession Regulation where an ‘older’ bilateral agreement with a third state is in place.

Permission to use this content must be obtained from the copyright owner

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the publishers.

stay alert keep smart

Editor-in-Chief: Daniel Sarmiento In-Depth and Weekend Edition Editor Sara Iglesias Sánchez

Editorial Board: Maja Brkan, Marco Lamandini, Adolfo Martín, Jorge Piernas, Ana Ramalho, René Repasi, Anne-Lise Sibony, Araceli Turmo, Isabelle Van Damme, Maria Dolores Utrilla and Maria Weimer.

Subscription prices are available upon request. Please contact our sales department for further information at

subscriptions@eulawlive.com

EU Law Live 2695-9585 EU Law Live Weekend Edition 2695-9593

ISSN

21 21

www.eulawlive.com

22 22