JUDGMENTS
DANIEL SARMIENTO
2024
10 Leading Judgments of the Year
Daniel Sarmiento 1
Another year and yet another round of seminal rulings from the Court of Justice. 2024 was a fruitful period in the Kirchberg, where the Court delivered dozens of judgments on points of principle covering most areas of Union law. As in previous years, it was not easy to make a selection and some very important judgments have been left out in order to represent with only ten cases the overall production of the Court of Justice in a single year. The selection is, as always, very personal and subject to the author’s own prejudice and bias, but it reflects the richness of the Court’s jurisprudence and the direction in which Union law is heading.
2024 was also the year in which a partial transfer of the preliminary reference finally took place. The General Court started hearing preliminary references in some ‘specific areas’ and the very first ones arrived shortly before the end of the year. It was striking to see a preliminary reference being published in the Official Journal among the new cases registered in the General Court, but that is something to which we must grow accustomed in the coming years. This first and partial transfer will surely be only the first of many others to come.
The Court of Justice went through a massive renewal of sitting members, a reconfiguration that materialised in a tsunami of judgments delivered on 4 October 2024. Every three years both courts go through a partial renewal, but the expansion of sitting members, together with the doubling of judges in the General Court, have made this event a rather tumultuous one, particularly when a significant number of judges and advocates general leave the Court, as was the case in 2024. The uncertainty surrounding some appointments (or re-appointments) and the ever more stringent scrutiny of the 255 Committee have not made the Court’s life any simpler, with some appointments still awaited in 2025.
Is there a common thread to the selection of this year? Probably not. The only common feature is the (unsurprising) fact that all the rulings were delivered by the Grand Chamber or the Full Court. This year there are no judgments of the General Court, not because of the lack of important judgments, but due to the abundance of significant rulings coming from the higher instance.
Some features are common to several cases and they provide interesting developments going beyond the objective importance of the concrete case. 2024 was a year in which the Court of Justice underwent several implicit overrulings or ‘recalibrations’, one in KS & KD2 and another one in Quadrature du Net II 3 These are not explicit reformulations of prior
1. Professor of EU Law at the University Complutense of Madrid and Editor-in-Chief of EU Law Live
2. Judgment of the Court of Justice of 10 September 2024, KS and KD (C 29/22 P and C 44/22 P, EU:C:2024:725).
3. Judgment of the Court of Justice of 30 April 2024, La Quadrature du Net II (C 470/21, EU:C:2024:370).
case-law, but a well-thought reconsideration of the scope of previous judgments in highly sensitive areas. There were also striking deviations or distinguishings from earlier and recent judgments, as is the case of Apple (Commission/Ireland),4 introducing a surprising twist that is sitting uncomfortably with prior rulings like Fiat (Commission/Luxembourg).5 A zigzagging Court of Justice in major cases of principle is probably one of the striking features of 2024. Playing the role of a supreme court sometimes requires a change of mind, it is an inevitable fact of judicial life. There may have been a few too many in 2024.
Playing the role of a supreme court sometimes requires a change of mind, it is an inevitable fact of judicial life and risk management strategies
Valančius (C-119/23)
The Court of Justice has spent several years setting the standards of judicial independence that Member States must respect under Union law, so it was just a matter of time until a case on the appointment of judges to the Court of Justice and the General Court itself made it to Luxembourg.6 The case was a reference made from the Lithuanian regional court of Vilnius, in proceedings brought by Virgilijus Valančius, the former Lithuanian judge of the General Court who had unsuccessfully applied for a renewed mandate. The national selection committee ranked him in first position, but the government decided to appoint a different candidate. Valančius challenged the decision in national court and the case was referred to the Court of Justice, that ruled in favour of the Lithuanian government. In reviewing the procedure and the criteria used to select the candidate to sit in the General Court, the Court of Justice interpreted Article 254 TFEU and fleshed out the basic standards that must govern the Member State’s decision to propose a candidate to the Union courts. The paradox is that, once the national procedure is over, the next phase in the selection process that takes place in Brussels is not very much in line with what the Court of Justice is requesting the Member States to comply with. While Valančius provides an important benchmark for future Member State conduct in the process of selecting European judges, it also stands as a stark reminder of the serious deficiencies that the selection process suffers from once it reaches the Union level, where an inter-governmental logic applies, devoid of all judicial review and transparency. Food for thought.
4. Judgment of the Court of Justice of 10 September 2024, Commission v. Ireland (Apple) (C 465/20 P, EU:C:2024:724).
5. Judgment of the Court of Justice of 8 November 2022, Fiat (C 885/19 P and C 898/19 P, EU:C:2022:859).
6. Judgment of the Court of Justice of 29 July 2024, Valančius (C 119/23, EU:C:2024:653).
Real Madrid v. Le Monde (C-633/22)
In a bold move that took many by surprise, the Court of Justice introduced a powerful exception to the recognition of civil and commercial judgments under the Brussels I Regulation, in cases in which a serious breach of a fundamental right is at stake.7 The public policy clause has always been interpreted very strictly to avoid undermining the logic of the Brussels I Regulation. However, in a case concerning the freedom of the media and damages actions brought against a newspaper, the Court decided to stretch the margins of the public policy clause beyond its traditional strictures. The case is hugely important as it sets the tone for rule of law concerns in the field of judicial cooperation in civil and commercial matters, having already introduced some standards in criminal matters in previous years, but remaining mostly silent when it came to civil and commercial litigation. It is also a relevant ruling that fleshes out the basic contours of the freedom of the media, as recognised in the Charter, particularly at a time in which the European Media Freedom Act8 is now a binding Regulation, together with the Anti-SLAPP Directive,9 which provide a European framework to protect journalists and the integrity and autonomy of the press. The fact that the case stems from a dispute between a well-known football club and a wellestablished journal only adds further interest to what is undoubtedly the most relevant fundamental rights case of the year.
Illumina/Grail (Joined Cases C-611/22 P and C-625/22 P)
In March 2021, the Commission made a significant change to its policy regarding referrals under Article 22 of the EU Merger Regulation, with the aim of filling out gaps in the scope of EU merger control. According to the new policy, the Commission would accept referrals in certain circumstances and would also invite Member States to make such referrals even if they lacked jurisdiction under their own national rules, in order to capture competitively relevant transactions below threshold deals. In its Grand Chamber judgment of 3 September 2024,10 the Court of Justice overturned the Commission’s policy and opted for an orthodox interpretation of Article 22. The Court’s reasoning can be summarised with a simple ‘two negatives do not make a positive’. The fact that neither the Commission nor the national competition authority have jurisdiction, does not turn the situation into one in which the Commission ends up exercising jurisdiction. The Court pointed to the Member States, inviting them to legislate and lower their thresholds, so that no problematic transaction ends up outside the radar of competition policy. But the trend is going in the other direction, so eventually it will be for the EU legislature to clarify the scope of the Commission’s
As an exercise in powergrabbing, the Illumina/ Grail saga is good proof that the Court of Justice is ready to draw a line on the Commission’s competition policy decisions
7. Judgment of the Court of Justice of 4 October 2024, Real Madrid Club de Fútbol v. Société Éditrice du Monde (C 633/22, EU:C:2024:843).
8. Regulation (EU) 2024/1083 of the European Parliament and of the Council of 11 April 2024 establishing a common framework for media services in the internal market and amending Directive 2010/13/EU, OJ 2024 L 1083.
9. Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings, OJ 2024 L 1069.
10. Judgment of the Court of Justice of 3 September 2024, Illumina v. Grail (C 611/22 P and C 625/22 P, EU:C:2024:677).
jurisdiction in the future. As an exercise in power-grabbing, the Illumina/Grail saga is good proof that the Court of Justice is ready to draw a line on the Commission’s competition policy decisions, and that matters of jurisdiction are within the legal domain of the Court’s standard judicial review, and therefore not protected by the Commission’s broad margin of discretion.
Neves 77 (C-351/22) and KS & KD (C-29/22 P and C-44/22 P)
By the end of 2023 the negotiations between the European Union and the Council of Europe on the accession to the European Convention of Human Rights came to an end, having addressed all the (many) objections raised by the Court of Justice in Opinion 2/13, but one: the jurisdictional gap of the Union courts in the field of CFSP. It seemed as if this objection could only be surmounted by a Treaty amendment, until the Court of Justice stepped in and delivered its rulings in KS & KD and Neves 77. 11 Both judgments, but particularly KS & KD, provide a potential solution to the imbroglio caused by Article 275 TFEU, by introducing a ‘political question’ doctrine that allows Union courts to review CFSP acts in matters which do not affect strategic foreign policy decisions. The judgment is hugely important, not only because it potentially paves the way for (at last) a smooth accession to the ECHR in the near future, but it also resolves a deep anomaly in the Union’s system of judicial review, which hailed the Union’s adherence to human rights and the rule of law, but excluded judicial review of the Union’s foreign policy in extremely broad terms. This anomaly could come to an end if the practical implementation of this new approach in the case-law materialises in the years to come. For now, it is only an olive branch, but its importance and symbolism should not be understated.
KS & KD provide a potential solution to the imbroglio caused by Article 275 TFEU by introducing a ‘political question’ doctrine that allows Union courts to review CFSP acts in matters which do not affect strategic foreign policy decisions
11. Judgment of the Court of Justice of 10 September 2024, KS and KD (C 29/22 P and C 44/22 P, EU:C:2024:725), and judgment of the Court of Justice of 10 September 2024, Neves 77 Solutions (C 351/22, EU:C:2024:723).
Commission/Front Polisario (C-778/21 P and C-779/21 P) and Confédération paysanne (C-399/22)
External relations are always a fertile ground for important judgments of the Court of Justice. In 2024, the major development in this field was Front Polisario and Confédération paysanne, the second round of litigation concerning the EU-Morocco Association Agreement as a result of its application to the territory of the Western Sahara.12 Once again, the Court of Justice disagreed with the Union’s political institutions and forced their alignment with international law. Despite the pragmatic efforts of the Member States and the Commission to safeguard relations with Morocco, the Court of Justice once again rejected an attempt to negotiate with Morocco over a territory (Western Sahara) for which the UN supports the right of self-determination of its peoples. The Court of Justice insisted once again on its expansive notion of consent in international law, this time taking it even further by implicitly linking it to benefits. To some extent, the Court of Justice was also making pragmatic efforts to try to make ends meet between the imperatives of international law and the efforts of the political institutions in stabilising a bilateral relationship with Morocco. By doing so, the Court of Justice developed an original and broad notion of ‘consent’ under international law that is not in line with the opinio iuris on the matter. Once again, the autonomy of Union law allows the Court of Justice to go the extra mile when interpreting international law. It is yet to be seen if these acrobatic efforts will deliver the goods in the long term, or whether they will simply sow the seeds of discord and further litigation.
Google and Alphabet/Commission (Google Shopping) (C-48/22 P)
Exclusionary abuse was clearly one of the stars in this year’s menu. In the summer of 2024 the Commission published the draft text of its new guidelines, triggering a lively debate that has aroused concern among many in the competition field. And in September the Grand Chamber of the Court of Justice delivered the highly awaited judgment in the Google Shopping case.13 There are multiple reasons to include this ruling among the year’s leading cases, but two factors stand out. First, it confirms the trend in previous case law on Article 102 TFEU, departing from a formalistic approach towards judicial review and a more economic-centered analysis of Commission decisions in cases of abuse. Second, it provides valuable insights into the essential facilities doctrine applied to digital markets. The notion of indispensability, which is at the core of the Bronner case-law, is recalibrated in Google Shopping by referring to an activity which is ‘indispensable to carrying on the undertaking’s business, inasmuch as there is no actual or potential substitute in existence for that infrastructure’. Google Shopping turned out to provide a useful benchmark for the Commission’s upcoming guidelines, and in ways that are not exactly in line with what the Commission originally had in mind. It looks as if exclusionary abuse will be back on the menu in 2025, but with the long shadow of Google Shopping hanging over it.
12. Judgment of the Court of Justice of 4 October 2024, Front Polisario (C 778/21 P and C 798/21 P, EU:C:2024:833) and judgment of the Court of Justice of 4 October 2024, Confédération paysanne (C-399/22, EU:C:2024:839).
13. Judgment of the Court of Justice of 10 September 2024, Google and Alphabet v Commission (Google Shopping) (C 48/22 P, EU:C:2024:726).
Google Shopping turned out to provide a useful benchmark for the Commission’s upcoming guidelines, and in ways that are not exactly in line with what the Commission originally had in mind
La Quadrature du Net II (C-470/21)
A judgment delivered in Full Court always deserves close attention. But this time around it is a peculiar Full Court, since the case was originally attributed to the Grand Chamber, only to be referred to the Full Court after the publication of the Advocate General’s first Opinion. 14 The Advocate General’s proposals in both Opinions were not entirely in line with the maximalist position traditionally held by the Court when it came to the protection of privacy in the digital sphere, thus hinting at the possibility of a recalibration. A change of approach could have been justified, since the European Court of Human Rights had taken a much more balanced analysis of these matters, and even the French Conseil d’État, the referring court of the case, had hinted in the past at the possibility of ignoring the Court of Justice’s strict stance and going solo. In the end, everybody could be disappointed and satisfied all at once. The Court of Justice did not reverse its case-law on the protection of digital privacy, but it certainly nuanced it when it came to the case of distinguishing between ‘typical’ and ‘atypical’ situations, to finally conclude that the French Hadopi law, which allowed public authorities to have access to data of non-serious copyright offences committed online, was in line with the Charter and, in particular, its proportionality test. The European Court of Human Rights could claim a victory too, since its approach and its balanced analysis was vindicated in the way that the Court of Justice approached the matter. Even the French Conseil d’État could be satisfied, having forced a Full Court in Luxembourg and a significant change of tone in digital privacy cases. It could be said that the Court of Justice landed in a terrain where all the players involved in this saga can now be comfortable, proving once again that developing a settled principled case-law in Europe requires time, patience and some clever nudging on the part of all the players involved.
14. Judgment of the Court of Justice of 30 April 2024, La Quadrature du Net II (C 470/21, EU:C:2024:370).
The tax community was in shock, pointing at the multiple flaws of the Apple judgment in the tax assessment of the case, but mostly decrying the legal uncertainty created for tax authorities and multinational companies worldwide
Apple (Commission/Ireland, C-465/20 P)
The Apple judgment put an end to a saga that started some years ago in the US Senate, when Apple’s CEO admitted on the record that the company had received ‘a tax incentive arrangement’ in Ireland.15 From that moment onwards, the fight against aggressive tax planning started world-wide, and particularly in the European Union, where an impressive array of legislative measures was passed (DAC, ATAD 1, ATAD 2, the P2 Directive…) and the Commission transformed its state aid competence into an aggressive tax-planning combat zone. The Court of Justice was unimpressed by the Commission’s approach, as was confirmed in a number of judgments that seemed to settle the matter, all of them delivered in Grand Chamber (Fiat, C-885/19 P and C-898/19 P, Engie, C-451/21 P and C-454/21 P, and Amazon C-457/21 P).16 The Court of Justice put state aid law back in its place, as a tool to combat selective tax advantages that derogate from the tax system of the Member State, but rejecting an imaginary and autonomous arm’s-length standard fabricated by the Commission that allowed it to indirectly legislate on tax matters through its state aid policy. But then, all of a sudden, the Apple judgment steps in and… surprise, surprise, the Court of Justice, in stark contrast with its previous rulings, decides to develop its own autonomous interpretation of the arm’s length principle (in terms that are not consistent with how international tax law conceives it) and ruled that the 13 billion euros (plus interest) of untaxed ocean profits of Apple belonged to Ireland. The judgment is even more puzzling, as shortly after, in UK and ITV v. Commission (C-555/22 P, C-556/22 P and C-564/22 P),17 the Court of Justice embraced the pre-Apple approach and confirmed its previous stance developed in Fiat, Engie and Amazon. The tax community was in shock, pointing at the multiple flaws of the Apple judgment in the tax assessment of the case, but mostly decrying the legal uncertainty created for tax authorities and multinational companies worldwide. The intentions of the Commission (and now of the Court of Justice) may have been noble, but the way in which they put them into motion produced one of the most notable reputational disasters for the Court of Justice (and the EU), leaving a long line of casualties along the way, including the Court’s reputation for thorough and quality technical analysis, and the principle of legal certainty.
15. Judgment of the Court of Justice of 10 September 2024, Commission v. Ireland (Apple) (C 465/20 P, EU:C:2024:724).
16. Judgment of the Court of Justice of 8 November 2022, Fiat (C 885/19 P and C 898/19 P, EU:C:2022:859), Judgment of the Court of Justice of 5 December 2023, Engie (C 451/21 P and C 454/21 P, EU:C:2023:948), Judgment of the Court of Justice of 14 December 2023, Amazon (C 457/21 P, EU:C:2023:985).
17. Judgment of the Court of Justice of 19 September 2024, UK and ITV v. Commission (C 555/22 P, C 556/22 P and C 564/22 P, EU:C:2024:763).
EUIPO/The KaiKai Company Jaeger Wichmann (C-382/21 P)
Together with Polisario, KaiKai is the other leading judgment of the year in the field of external relations.18 The Court of Justice clarified the way in which Union secondary law must be interpreted in conformity with international agreements entered into by the Union. And the result is rather surprising: since the intent of the Union legislature was to exclude patents from the Community Designs Regulation, there is no possible consistent interpretation to be made in light of the Paris Convention on Industrial Property. Surprisingly, the General Court came to the opposite conclusion and ruled that the Regulation must include patents, but the Court of Justice saw it differently. The judgment is important because it sets the trend that puts Union secondary law at the forefront when it comes to its interaction with international agreements. By giving such a central role to the intent of the Union legislature, international agreements are put in a discrete and slightly subordinate role vis-à-vis Union secondary law, even in terms of interpretation. The all-mighty autonomy of Union law shows once again to what lengths its shadow can extend, and how its practical implications eventually sideline international law for the benefit of the Union legislature.
Commission/SRB (C-551/22 P)
Delegations within the EU’s institutional structure are frequent, but they are subject to strict conditions, particularly when the delegation comes from an institution and towards a technical agency. The Meroni doctrine was created for that reason in the 1950’s and it has acted as a constraint against unfettered delegation to technocratic bodies. However, in the years following the financial crisis, a sweeping number of reforms granted very broad powers to newly created EU agencies in the financial sector. One of the most spectacular examples of a powerful new agency was the Single Resolution Board, an agency with the power to resolve credit institutions and wipe out their capital for the sake of financial stability. To moderate the broad powers conferred on this agency, the Commission was given an endorsement ex-post power, to ensure that the final decision had the approval of an EU institution. In Commission v. SRB, the Court of Justice dealt with the powers of the SRB but in an even more complicated setting: bringing an action of annulment against the decisions of the SRB.19 In such a case, who must be taken to court? The SRB as the technical agency with the expertise having made the material decision, or the Commission, due to its endorsement of the SRB’s previous actions? The Court of Justice reinstated a rather orthodox interpretation of the Meroni doctrine and settled the matter by arguing that the Commission was the only possible EU authority that could make the decision to resolve a bank (in this case, Banco Popular, a Spanish lender). Therefore, the shareholders wishing to challenge the decision in court had to bring an action against the Commission, not the SRB. Meroni orthodoxy has been restored, taking it a step further by extending it to judicial proceedings in Union courts.
18. Judgment of the Court of Justice of 27 February 2024, EUIPO v. The KaiKai Company Jaeger Wichmann (C 382/21 P, EU:C:2024:172).
19. Judgment of the Court of Justice of 18 June 2024, Commission v. SRB (C 551/22 P, EU:C:2024:520).