Weekend Edition Nº31 by eulawlive

Nº31

OCTOBER 3

2020

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Henriikka Leppo

A ROLLING STONE GATHERS NO MOSS THE EVOLVING STRUCTURE OF THE EU’S COURT SYSTEM

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A rolling stone gathers no moss

The evolving structure of the EU’s court system Henriikka Leppo

The structure of the CJEU is exible, as it has, unlike that of the other main institutions of the EU, been changed and developed several times to meet the various new challenges brought over the years by expansions of the EU's territorial area and of its powers.

Structure of the EU’s court system over time

The story of the Court of Justice of the European Union (CJEU) (2) can be traced back to the Court of Justice of the European Coal and Steel Community (the ECSC Court). In The original ECSC Court, established in its rst meeting, held on 10 December 1952, 1952, consisted of seven judges and two adJean Monnet stated solemnly that “[f]or the vocates general. In 1957, following the crearst time there has been created a sovereign tion of the European EconoEuropean Court. I foremic Community and the Eurosee in it also a Supreme pean Atomic Energy ComFederal European The structure of the munity, the ECSC Court was Court” (3). Although this replaced by a common ‘Court statement in retrospect CJEU is ﬂexible and of Justice of the European might seem slightly exagCommunities’ (CJ). The casegerated, today the CJEU, has been changed load of the CJ grew relatively with its jurisdiction coveseveral times to meet slowly, and during the 1950s ring 28 (4) European counand the 1960s it only rarely tries and a wide range of various challenges had to deal with more than 50 subject-matters touching cases per year (5). However, afthe everyday life of cititer the rst two decades the zens, without a doubt is a number of new cases turned European Court.

1. The author is the agent of the Finnish Government before the EU Court of Justice and the head of the EU litigation unit in the Ministry for Foreign Affairs. The opinions expressed in this article are the author’s own and do not represent those of the Finnish Government. 2. Although the names have been changed several times, for the sake of simplicity the institution will be referred to as the EU Court of Justice (CJEU), the higher court as the Court of Justice (CJ) and the lower court as the General Court (GC) throughout the text. 3. Tamm, Ditlev, ‘The History of the Court of Justice of the European Union Since its Origin’ in Bot, Yves, Rosas, Allan, and Levits, Egils (eds.), ‘The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case Law’. T.M.C. Asser Press, 2013, p. 9. 4. Concerning the situation of the United Kingdom, see the Agreement on its withdrawal from the European Union (OJ C 384I, 12 November 2019) and notably Articles 86-95, 131, 158, 161-163, 174-175 thereof. 5. The statistical data referred to in this article is based on Annual Reports of the CJEU, available since 1997. For older data, see Table 1 at Appendix II in Brown, L. Neville and Kennedy, Tom: The Court of Justice of the European Communities, 5th edition. Sweet and Maxwell 2000.

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the resources of the CJ for it to concentrate on its core tasks. The total number of new cases kept growing almost at the same rate as before the establishment of the GC, and even if there was for a short moment a temporary relief, this was quickly compensated by the rise in the number of both preliminary references and appeals (7).

to a sharp increase. There were various reasons for this trend, such as the general increase in the volume of new Community legislation, the rst enlargement as well as the enhanced willingness of national courts to make preliminary references. In 1974 a sitting and former president of the CJ, Lord Mackenzie Stuart and Robert Lecourt, appeared in person before the Council and asked for the establishment of an administrative tribunal to deal with staff cases (6). Although this attempt failed, it planted the seeds for the development of the judiciary from a single court to a multi-layered court system.

Different ideas on how to maintain the effectiveness and the quality of the Community judicature kept owing. The suggestions covered a wide range of potential solutions, stretching from modications in the respective areas of competence of the two courts or adding the number of judges in one or both of the courts (8) to more radical upheavals of the judicial architecture. Jean-Paul Jacqué and Joseph Weiler proposed in their famous article published in 1990 a judiciary consisting of a European High Court of Justice and four Regional Courts (9). Walter Van Gerven, on the other hand, suggested transforming the GC into a court of general jurisdiction and creating alongside it several specialised rst instance courts, located somewhere other than Luxembourg (10). The creation of a Staff Tribunal with appeals on points of law to the GC or alternatively increasing the size of the GC were also brought up (11).

The caseload continued to grow and, consequently, the handling times kept lengthening. The Single European Act of 1986 added to the Treaties a legal basis that made it possible for the Council in 1989 to establish a Court of First Instance, that later became the General Court (GC). In the beginning, the jurisdiction of the GC was very limited but it was soon expanded to cover not only cases concerning anti-dumping and subsidies but virtually all actions brought by natural or legal persons. Nevertheless, the establishment of the GC did not have the desired effect of liberating

6. The proposal was also presented in a letter of the CJ of 22 July 1974. Kennedy, Tom, ‘The essential minimum: the establishment of the Court of First Instance’, 14(1) EL Rev (1989), p. 7. 7. Reasons for this trend included, inter alia, the increased awareness of lawyers and the public of Community law, the intensied harmonisation related to the completion of the single market following the Single European Act and the expansion of areas over which the CJEU has competence, as well as the accessions of Spain and Portugal in 1986. 8. See, for instance, Voss, Reimer: The National Perception of the Court of First Instance and the European Court of Justice, 30 CML Rev (1993), p. 1119. 9. Jacqué, Jean-Paul and Weiler, Joseph H.H., ‘On the road to European Union – a new judicial architecture: An agenda for the Intergovernmental Conference’, 27 CML Rev (1990), p. 185. 10. Van Gerven, Walter, ‘The role and structure of the European judiciary now and in the future’, 21(3) EL Rev (1996), p. 211. 11. ‘The Role and Future of the European Court of Justice’, A report by members of the EC Section of the British Institute’s Advisory Board chaired by the Rt Hon the Lord Slynn of Hadley (October 1996).

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Court system. As proposed by the ‘Working Party on the Future of the European Court of Justice’, presided by (then former) CJ President Ole Due (12), the Nice Treaty introduced a legal basis for the creation of the socalled judicial panels (later, special tribunals). The negotiations for establishing a Civil Service Tribunal (CST) commenced shortly, allowing this seven-member judiciary to start functioning in 2005. The general presumption was that it would be the rst of several special tribunals and that the structure of the community judicature would in the future be on three-levels. As it later turned out, this was not the case.

Towards the end of the century, the average period to deliver a preliminary ruling had lengthened to over 21 months and the risk of national courts turning their backs on the system seemed more and more likely. The situation was made especially alarming by the fact that the next, by far the biggest enlargement in the history of the Union was on its way, adding not only the number of incoming cases but also the burden of the already overloaded translation services. Thus, the Intergovernmental Conference of 2000, the main purpose of which was to reform the institutional structure of the EU to endure the enlargement, presented the natural opportunity for modifying the architecture of the

12. Report by the Working Party on the future of the European Communities’ court system. January 2000.

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The EU legislature managed to ﬁnd a compromise that consisted of a far more radical reform than the one originally proposed.

The reform of the General Court

by September 2019 and (2) the abolishment of the CST (14).

The rest of this article will be devoted to the examination of the latest reform of the EU’s Court system. This reform was agreed by the EU legislature in December 2015 and it has its background in the workload crisis that the GC faced towards the end of the rst decade of 2000. As a remedy, the CJ presented a proposal in 2011 (13) to increase the number of judges in the GC by 12. After a lengthy, cumbersome and highly politicised process, the EU legislature managed to nd a compromise that consisted of a far more radical reform than the one originally proposed. The main elements of the reform were (1) the gradual doubling of the number of judges of the GC

There is no denying that the reform has shortcomings. First, the number of extra judges seems excessive. The need to double the number of judges was never properly demonstrated in light of statistics and, in addition, the GC managed to enhance its effectiveness quite remarkably right before the adoption of the reform (15). Moreover, the abolishment of the CST and, at the same time, the three-level court system certainly is a loss. Finally, the long and entangled process through which the reform was adopted can certainly not be used in the future as an example of good legislative practice.

13. In document 8787/11 of the Council, 7.4.2011, accompanied by an addendum containing an assessment of the nancial impact of the proposals. 14. Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union, OJ 2015 L 341, p. 14. 15. Whereas the GC was in 2010 able to complete 527 cases, in 2015 its productivity had augmented so as to allow the completion of as much as 987 cases. This development was the result of a series of internal measures taken throughout the past ten years in order to make its work more effective.

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red a success. The frustration of many parties involved in the process was aptly summarised by a commentator according to whom ‘more than 55 years after the Treaty of Rome, member states still seem to perceive EU judges as mere guardians of their sovereign prerogatives’ (17).

Therefore, it is hardly surprising that the reform faced a wave of critique (16). The risk of wasting public money by having judges with too little work is considered much bigger a sin than those judges having too much work – rightly or not. The global nancial and economic crisis that touched all Member States, forcing many of them to undertake severe measures hitting the personnel of the public sector, certainly makes the comparison even more striking.

However, the reform is a reality now and it is time to turn our gaze towards the future. The relevant question obviously is whether the procedural and substantive shortcomings of the reform signify that it is deemed to be a failure, now and forever. Or could the CJEU manage to turn the reform, if not into a glaring success story, at least a legitimate improvement of the court system?

It is important to note very little of all this is attributed to the CJEU itself. The blame lies on the legislature and, rst and foremost, the Member States, whose power struggle led the judiciary into an impasse from which the only feasible way out was to propose doubling of the number of judges. First, had the Member States been able to agree on a method of distributing the new posts among themselves according to a rotation system, the number of extra judges could have been set exactly to the level considered appropriate and necessary. However, as the years passed and each and every thinkable rota system had been proposed by different Council presidencies without success, it became clear that any such solution was a political no-go. Secondly, the recurrent problems related to the nationality of judges to be nominated to the CST by the Member States made it easier to argue why this Tribunal could be abolished despite the fact that it was generally conside-

A glance at statistics During the past few years, the implementation of the reform has taken time and energy, and the constant changes have certainly disrupted the work of the GC and prevented it from concentrating on its ‘core business’. The report that the CJ is expected to draw up by the end of 2020 as a follow-up of the reform will be an interesting read, although one might ask whether it is still too early to draw far-reaching conclusions on the success of the reform (18). However, a look at the statistics in the Annual Reports of the CJEU certainly is justiable.

16. See, for instance, Alemanno, Alberto, and Pech, Laurent, ‘Thinking justice outside the docket: A critical assessment of the reform of the EU's court system’, 54 CML Rev 2017, p.129 and ‘Egmont-papers’ No 83, No 86 and No 96 by Dehousse, Franklin. The twists and turns of the reform process have also been dealt with in various posts in blogs and online newspapers featuring EU law. 17. Abenhaïm, Marc, ‘Note on a missed opportunity for the administration of justice across Europe’, in Kluwer Competition Law Blog, 24 March 2014.. 18. Article 3(1) of Regulation 2015/2422 stipulates as follows: ‘By 26 December 2020, the Court of Justice shall draw up a report, using an external consultant, for the European Parliament, the Council and the Commission on the functioning of the General Court. In particular, that report shall focus on the efciency of the General Court, the necessity and effectiveness of the increase to 56 Judges, the use and effectiveness of resources and the further establishment of specialised chambers and/or other structural changes. Where appropriate, the Court of Justice shall make legislative requests to amend its Statute accordingly.’

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reform of the GC, both by actors inside and First, as regards the duration of proceedings outside the institution (20). in the GC, the reform has already had a positive impact. The average duration of cases ruled upon by judgment has declined from Some options for future measures 25.7 months in 2015 to 19.7 months in 2019. Nevertheless, in State aid cases and in comAs noted above, today the number of incopetition cases the length of proceedings is ming cases is roughly the same in these two still relatively long (19). Secondly, the gures courts, having however quite different reconcerning productivity raise questions. sources. Thus, it seems clear that there Whereas in 2015 the GC was able to compleshould be transfers of jurisdiction from the te 987 cases (with 28 judCJ to the GC. This is essenges), in 2019 the correspontial for a more even distribuding number was 874 comtion of the total workload, It seems clear that there pleted cases despite the fact which in turn enables the insshould be transfers of that there were, at the end of titution as a whole to use its the year, 52 judges. Thus, overall resources in the best jurisdiction from the productivity per judge has and most effective way posdropped quite considerably. Court of Justice to sible. Thirdly, the number of new the General Court incoming cases has lately One obvious solution conbeen roughly the same in sists of a partial transfer of the GC and the CJ. This competence to give jurisdoes not seem reasonable in a situation whediction over preliminary rulings to the GC. re the former has twice as many judges as the In its report of December 2017 the CJ rejeclatter. These gures seem to indicate that the ted this avenue, stressing however that this total resources of the CJEU are not, as it should ‘not at all be understood as a denitistands, used in the most efcient way possive position’ (21). There are reasons for which ble. this would make more sense than the other main candidate, namely giving the GC the The future success of the reform is in the power to rule on infringement actions. hands of the CJEU itself. It must be ready to, funnily enough, reform in order to properly First, transferring infringement actions benet from the reform. The following secwould not, because of their small number, hation deals with some of the ideas presented ve a great impact on the workload of either in the institutional discussion concerning the

19. 32.5 and 34.4 months respectively in cases ruled upon by judgment in 2019. 20. See, for instance, Sarmiento, Daniel: ‘The Reform of the General Court: An Exercise in Minimalist (but Radical) Institutional Reform’, 19 Cambridge Yearbook of European Legal Studies (2017), p. 236; and van der Woude, Marc, and Bellis, Jean-François ‘The reform of the General Court for a better and faster judicial review’, Concurrences N° 2-2020, Art. N° 93562, p. 16. 21. Report of the Court of Justice on possible changes to the distribution of competence for preliminary rulings under Article 267 TFEU, in Council document 15995/17 of 21 December 2017.

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First, the use of a ve-judge chamber should be made the general rule (25). Both the quality and the legitimacy of the decisions could benet from a larger formation, consisting of a broader representation of different legal cultures. The establishment of larger chambers, of for instance nine judges, is also an option to be considered.

of the two courts (22). Secondly, without an effective restriction of the right to appeal, this would entail prolongation of the infringement procedure as a whole, which would be very detrimental to the efciency of EU law and the rights of the citizens. Preliminary references, on the other hand, represent a considerable proportion of the workload of the CJ every year (23). It is clear that not all preliminary references can be transferred to the GC, but would it be possible to make a partial transfer? One could envisage a formal criterion (such as leaving to the CJ references made by the highest national courts and references questioning the validity of an act), or a substantive criterion (transferring to the GC references concerning certain areas such as value added tax, custom duties and trademarks). It should also be stressed that there is a safety net provided by the Treaties. The CJ could always handle an individual case deemed to require a decision of principle likely to affect the unity or consistency of union law, and it would review the decisions of the GC if there is a serious risk of the unity or consistency of EU law being affected.

Secondly, the GC could genuinely commence use of the grand chamber. Although there in theory is a grand chamber, it has rarely been used and, for instance in 2019, no case was assigned to this formation. In a similar manner as is the case in the CJ, the grand chamber of the GC could become a sort of a ‘quality label’ marking the importance of the case and the authority of the judgment. Thirdly, the creation of additional specialised chambers could be considered. This is also one of the issues to be considered in the name of efciency in the report that the legislator instructed the CJ to draft by the end of 2020. There are reasons to believe that a system based on a more far-reaching degree of specialisation of chambers could enhance the proper administration of justice in a 54member court. Until now, however, it has only been decided that six chambers deal with intellectual property and four chambers are responsible for civil service. All other cases continue to be allocated among all the chambers although, according to the ‘con-

However, in order to genuinely invest in both efciency and quality, there are also several internal measures that the GC could consider (24).

22. In 2019 there were only 35 new infringement actions. In addition, some of the infringement cases are factually and legally quite simple to solve especially if the action relates to late transposition of a directive. 23. In 2019, for instance, preliminary references represented 66.35 % of new cases and 69.48 % of completed cases. 24. Article 256(3) TFEU. 25. In 2019, 86.96 % of completed cases were handled by a three judge chamber, and only 6.76 % by a ve judge chamber.

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ral for the most important cases could add the legitimacy of the judicial work of the GC. However, appointing a judge ad hoc to act as advocate general in an individual case could be problematic from the point of view of independence. Thus, a system in which a judge or a number of judges would be designated to act as (exclusively) advocate generals for a given period of time could be considered.

nection criterion’, similar cases should, in principle, be assigned to the same chamber. The need for specialisation inside the GC is hardly new. It has been discussed since the establishment of the GC and has always been controversial. With these controversies in mind, it is important to note that creating specialised chambers does not go hand in hand with the recruitment of specialised judges. The judges assigned to a specialised chamber would rapidly gain in-depth experience through work and the chamber would create an institutional memory of its own, ensuring a more effective handling of cases and the development of a coherent body of jurisprudence. This would also allow for the judges to rotate between the chambers on a regular basis, it being a well-known fact that some areas are generally considered more interesting for a judge than others.

In addition to the above-mentioned options there is certainly also a range of other ideas that the CJEU could explore. There should be processes of brainstorming in which academia, the representatives of the users of the courts and other stakeholders could participate. What is needed is an open mind and readiness to nd and implement new and innovative ways to organise the administration of justice in the EU. This would help to improve the judicial system as a whole and benet the legal subjects. It could possibly even enhance the legitimacy of the reform process ex post. In summary, the CJEU now has a formidable chance to make its constitutive courts excel both in effectiveness and quality.

Fourthly, the genuine introduction of the advocate general-institution, instead of the current possibility of designating a judge to perform the duties of an advocate general in a particular case, is an interesting idea. At the time of the establishment of the GC, the CJ was of the opinion that permanent advocates general were not necessary because the intended role of the GC was limited to special categories of cases and hence, did not include development of EU law (26). This reasoning is obviously no longer valid. Although the use of advocates general comes with slightly longer handling times, this should not be a problem as the GC now has the necessary resources to manage its handling times in general. Assigning an advocate gene-

26. Tridimas, Takis, ‘The Role of the Advocate General in the Development of Community Law: Some Reections’, 34(6) Common Market Law Review (1997), p. 1349.

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News Highlights 28 September to 2 October 2020

Pension supplements provided to mothers receiving pensions but not those who took voluntary early retirement: preliminary questions on EU discrimination law published Monday 28 September

Three UK Central Counterparty Clearing Houses eligible to provide services in the EU after the Brexit transition period Monday 28 September

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ICE Clear Europe Limited, LCH Limited, and LME Clear Limited will be recognised as third country CCPs eligible to provide their services in the EU once the Brexit transition period has ended, from 1 January 2021, further to decisions made by ESMA, the European Securities and Markets Authority.

Preliminary questions on the principle of equal treatment at work made by the Social Court No 1 of Barcelona (lodged on 11 June 2020) were published, in HV v Instituto Nacional de la Seguridad Social (INSS) (C258/20). The referring court asks whether pension supplements provided to mothers in receipt of a contributory retirement pension but not to mothers who have taken early voluntary retirement, and where both face difculties remaining in the employment market, is discriminatory.

Public consultation on protection and enforcement of intellectual property rights in third countries Monday 28 September

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The European Commission is running a public consultation on the state of intellectual property protection and enforcement in third countries, to identify third countries in which the state of IPR protection and enforcement gives rise to the highest level of concern and to update the list of the so called ‘priority countries’. The consultation will be open until 16 November 2020.

Daimler’s action against European Commission Decision concerning CO2 emissions and savings published Monday 28 September

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An action brought before the General Court by Daimler AG against the European Commission (T-509/20) (lodged on 14 August 2020) was published, by which Daimler seeks the annulment of a Commission Implementing Decision 2020/1035, in respect of the part that shows the average specic emissions of its CO2 and CO2 savings from eco-innovations.

Survivor’s pensions denied to de facto co-habiting partners: preliminary questions published on validity of Directive 79/7 and gender discrimination Monday 28 September

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The High Court of Justice of Catalonia’s preliminary questions to the Court of Justice in F.C.I. v Instituto Nacional de la Seguridad Social (INSS) (C-244/20) were published: the questions concern, among other EU equal treatment provisions, Directive 79/7 on equal treatment for men and women in matters of social security in the context of the refusal to give a co-habiting de facto partner a claim to a survivor’s pension.

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European Chief Prosecutor and 22 European Prosecutors sworn in at Court of Justice

Customs Union: Commission launches New Action Plan Monday 28 September

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Monday 28 September

A new four-year Customs Union Action Plan was launched by the European Commission in a Communication, to address new challenges and major problems such as fraud, smuggling and uneven Member-State capacities, highlighted by the European Parliament and European Court of Auditors, and activating the Commission President’s announcement in her political guidelines that she supports an integrated European approach to customs risk management.

The European Public Prosecutor’s Ofce (EPP) was appointed by the Council and the European Parliament in October 2019, and now the College of the EPPO has been sworn in at the Court of Justice of the European Union in Luxembourg, where the EPPO is seated.

Retroactive interpretation of Directive 2014/104 in a case of damages for anticompetitive behaviour: preliminary questions published Monday 28 September

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ECB amends guidelines on monetary policy implementation Monday 28 September

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The European Central Bank published amendments to its guidelines on the implementation of monetary policy in the Eurosystem, to be applicable from 1 January 2021, and which implement a series of decisions taken by the ECB’s Governing Council.

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The Court of Justice’s request for a preliminary ruling (AB Volvo and DAF TRUCKS N.V. v RM, C-267/20) from the High Court of León in Spain was published, concerning the interpretation of Directive 2014/104, on rules governing actions for damages under national law for infringements of competition law provisions.

Dutch court’s preliminary questions pu- Vice-President Maroš Šefčovič: third blished on how recent rule of law deve- EU-UK Joint Committee meeting lopments in Poland inﬂuence Euro- Monday 28 September READ MORE ON EU LAW LIVE pean Arrest Warrant execution Monday 28 September

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Publication was made of a request for a preliminary ruling (European arrest warrant issued against L, Other party to the proceedings: Openbaar Ministerie, C354/20), lodged by the District Court, Amsterdam concerning the European Arrest Warrant Framework Decision (2002/584), in light of the Court’s Minister for Justice and Equality judgment (C-216/18) and the recent developments relating to the rule of law in Poland.

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The European Commission’s Vice-President Maroš Šefčovič issued a statement highlighting main elements of the third meeting of the EU-UK Joint Committee, on Citizens’ Rights, the Northern Ireland/Ireland Protocol, Cyprus and Gibraltar, and more. He repeated that if changes were not made to the contentious parts of the UK Internal Market Bill, it would be ‘an extremely serious violation of the Protocol, as an essential part of the Withdrawal Agreement, and of international law’.

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ECtHR to decide on interim measures requested by Armenia against Azerbaijan Tuesday 29 September

Improvements to the Digital Services Act package proposal suggested by European Parliament Committee Tuesday 29 September

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The European Court of Human Rights received a Rule 39 request on 28 September for urgent interim measures lodged by Armenia against Azerbaijan in the pending inter-state application no. 42521/20, to ask the Azerbaijani Government ‘to cease the military attacks towards the civilian settlements along the entire line of contact of the armed forces of Armenia and Artsakh’, ‘to stop indiscriminate attacks’, and ‘to stop targeting civilian population, civilian objects and settlements’.

ECtHR: Russian inﬂexible rules on contact rights violate right to family life Tuesday 29 September

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The European Court of Human Rights ruled in Fatkhutdinov v. Russia (application no. 36335/18) that the complete and automatic exclusion of the applicant from a child’s life after his parental status was terminated amounted to a violation of Article 8 ECHR.

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The European Parliament’s Internal Market Committee members approved a ‘compromise amendments’ report requesting certain shortcomings in the Digital Services Act package proposed by the European Commission be addressed on how the EU should regulate digital services.

AG Pitruzzella: creditors must in principle accept cash in euros for the payment of monetary debts Tuesday 29 September

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Advocate General Pitruzzella delivered his Opinion in Joined Cases Johannes Dietrich and Norbert Häring v Hessischer Rundfunk (C-422/19 and C-423/19), a case concerning the concept and use of euro banknotes as legal tender under the EU’s exclusive competence in monetary policy.

EU accession to the ECHR: Council of Eu- ESMA updates regulatory technical rope and European Commission issue standards under the Benchmarks Regulation joint declaration Tuesday 29 September

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The Secretary General of the Council of Europe, Marija Pejčinović Burić, and the European Commission’s Vice President for Values and Transparency, Věra Jourová, issued a joint statement concerning the resumption of negotiations on the EU’s accession to the European Convention on Human Rights.

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Tuesday 29 September

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The European Securities and Markets Authority published its nal report containing new draft regulatory technical standards (RTS) under the Benchmark Regulation, which will be presented to the Commission in order for it to decide whether it endorses them.

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Court of Justice holds that return decisions against third country nationals can be suspended, further to appeal on grounds of serious illness

Sanctioning members of EU institutions in case of misconduct: the pending case Court of Auditors v Karel Pinxten

Wednesday 30 September

Wednesday 30 September by Dolores Utrilla

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The Court of Justice delivered two judgments in CPAS de Liège (C-233/19), and CPAS de Seraing (C-402/19) holding that a return decision can be suspended if an appeal has been made by a third country national on the grounds that he or she is suffering from a serious illness, or his or her minor child - who has since became an adult - is suffering from a serious illness, through its interpretation of Articles 5, 13 and 14(1)(b) of Returns Directive 2008/115.

On 29 September, the Plenary of the Court of Justice held a hearing in the case Court of Auditors v Karel Pinxten (C-130/19), a case concerning misuse of EU funds that is of high relevance from an institutional and strictly legal point of view. It concerns an action brought by the European Court of Auditors (ECA) against one of its former members on the basis he allegedly failed to meet his obligations under Articles 285 and 286 TFEU, requesting a penalty be imposed by the Court of Justice

Interim measures granted by ECtHR to prevent military action between Armenia and Azerbaijan

Commission presents Rule of Law Report

Wednesday 30 September

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On 28 September 2020, Armenia sent a Rule 39 request to the European Court of Human Rights for urgent interim measures to be granted due an ‘imminent risk of irreparable harm’ in the context of military ghting between Armenia and Azerbaijan, which was granted by the European Court of Human Rights on 29 September.

Rule of law conditionality and EU budget: Council agrees mandate for negotiations with Parliament Thursday 1 October

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The European Commission presented its new Rule of Law Report for the rst time. The Report is a comprehensive assessment of developments affecting the rule of law across the EU, as well as within Member States.

Explanatory Notes published on EU VAT law for cross-border e-commerce Thursday 1 October

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Explanatory Notes were published by the European Commission on EU VAT law that updates VAT Directive 2006/112, concerning cross-border B2C ecommerce transactions, in particular the VAT eCommerce Directives 2017/2455 and 2019/1995, and Regulation 2019/2026.

On 30 September 2020, the Council of the EU agreed its position on the proposal for a Regulation of the European Parliament and of the Council on a general regime of conditionality for the protection of the EU budget.

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Insects are not covered by the former novel foods Regulation 258/97: Court of Justice’s ruling

EU launches ﬁrst step in legal action against UK over Internal Market Bill infringing EU-UK Withdrawal Agreement

Thursday 1 October

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The Court of Justice rendered its judgment in Entoma (C-526/19) that Article 1(2)(e) of Regulation 258/97 must be interpreted as meaning that food composed of whole animals intended to be consumed as such, including whole insects, does not fall within the scope of that Regulation.

The European Commission sent a letter of formal notice to the United Kingdom for breach of its obligations under the Withdrawal Agreement (the Protocol on Ireland / Northern Ireland) by parts of a UK Internal Market Bill that would allow the UK authorities to disregard the legal effect of the Protocol’s substantive provisions under the Withdrawal Agreement. This marks the commencement of a formal infringement process against the United Kingdom.

Court of Justice rules that mandatory indication of country of origin of foods by EU law does not preclude additional origin particulars

Access to documents: Commission discloses correspondence with UK government as suggested by European Ombudsman

Thursday 1 October

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The Court of Justice rendered its judgment in Groupe Lactalis (C-485/18), a case on whether and how the EU Regulation on the provision of food information to consumers (1169/2011) allows for Member States to adopt measures imposing additional mandatory particulars regarding the origin or provenance of milk and milk used as an ingredient.

The European Ombudsman closed a complaint on the European Commission’s refusal of public access to correspondence with the UK government concerning the nomination of a candidate for the position of Commissioner. This follows the Commission’s positive response to the Ombudsman’s proposal that the letter should be disclosed in view of the fact that the UK has already left the EU.

ECtHR clariﬁes scope of application of ECHR in cases relating to special appeals to the President of the Italian Republic

Member States may not prohibit pharmacies established in other Member States from using paid referencing on search engines and price comparison websites, Court of Justice rules

Thursday 1 October

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The European Court of Human Rights declared the case Mediani v. Italy (application no. 11036/14) inadmissible, in a decision which claries the extent to which the provisions of the European Convention on Human Rights apply to complaints concerning the special appeal to the President of the Italian Republic.

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Thursday 1 October

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The Court of Justice delivered its judgment in A (C649/18), on the online advertising and sale of nonprescription medicines, clarifying the interpretation of Articles 34 and 36 TFEU, the e-Commerce Directive (2000/31), and the Medicinal Products Directive (2001/83), in the context of an unfair competition dispute concerning a website sales portal.

Nº31 · OCTOBER, 3 2020

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ECB considering issuing euros as digital currency

European Council: Conclusions on the situation in the Eastern Mediterranean

Friday 2 October

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The ECB reported that it was considering issuing euros as a digital currency, and would open up a public consultation on the matter, its Governing Council not yet having decided on the matter: a Eurosystem High-Level Task Force made up of ECB and national banking experts published a report on a digital euro for consideration.

The European Council’s special meeting on the EU’s external relations considered rising tensions between Greece and Cyprus against Turkey, promoted dialogue between the parties, and agreed to launch a ‘positive political EU-Turkey agenda’ which covers trade, the customs union, and migration matters on condition that illegal activities (drilling) by Turkey would stop, and with a warning that the EU would act if there were renewed unilateral actions or international law provocations.

European Council: Conclusions on the situation in Belarus

European Council: Conclusions on EUChina relations

Friday 2 October

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The European Council also addressed the situation in Belarus at its special meeting, following the Presidential elections in that country on 9 August and the violent events surrounding them, condemning the authorities for violence and intimidation, and calling for it to end. It was agreed to impose restrictive measures, and the Council was called upon to speed up the process. The Commission was encouraged to prepare a plan of economic support for a ‘democractic Belarus’.

EU-China relations were also discussed by the European Council, following the EU-China summit on 22 June 2020, the meeting with President Xi on 14 September 2020, the signing of the Agreement on Geographical Indications, and recent developments concerning the deterioration of human rights protection in certain areas of China.

Reform of rail passenger rights: informal agreement between Council of EU and European Parliament

State aid to banks: Court of Auditors calls for ﬁtness check and reinforced oversight

Friday 2 October

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The Council of the EU and the European Parliament reached an informal agreement to reform rail passenger rights, based on a Commission proposal made in 2017 to revise the existing measures, and addressing travellers who are disabled, wish to take their bikes on trains, and for more protection of compensation rights in the event of re-routing, cancellations and delays.

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The European Court of Auditors published a special report on the appropriateness and the effectiveness of the existing State aid rules applicable to banks. The audit, entitled ‘Control of State aid to nancial institutions in the EU: in need of a tness check’ is part of its work on nancial and economic governance.

Nº31 · OCTOBER, 3 2020

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European Law Moot Court publishes case to be argued by law students across the EU Friday 2 October

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EU law students, lawyers and professors from every Member State have taken part in an annual moot court competition called the European Law Moot Court (ELMC) since 1988, a competition between rival teams of university students on complex EU law issues, this year’s case now having been published.

Analyses & Op-Eds Putting sand in the Dutch Pension ‘Clockwork Orange’: the YS case By Hans van Meerten

The action plan for the customs union By Darya Budova

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Op-Ed examining a particular part of the YS case, C223/19: pensions and property rights, in particular on the impact of the ruling in the Dutch pension reform, in a case described as of paramount importance for pension reform.

CPAS de Seraing and CPAS de Liège: Towards a more coherent legal framework for ‘non-removable’ vulnerable migrants? By Janine Silga

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Analysis on the cases CPAS de Seraing (C-402/19) and CPAS de Liège (C-233/19), in which the Court of Justice provided further guidance on the extent to which ‘nonremovable’ third-country nationals staying irregularly in the European Union (EU) are entitled to social assistance, addressing their unclear legal situation, and replacing national procedural rules within the broader constitutional framework of EU law.

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An Analysis of the new Action Plan for the Customs Union unveiled by the European Commission on 28 September, examining its aims, priorities, impact, and related legislative proposals that can be expected.

COOL obligations assessed by the Court of Justice in Lactalis By Janja Hojnik

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Op-Ed on the Court of Justice’s ruling Lactalis (C485/18), in which it held that the EU Regulation on the provision of food information to consumers (1169/2011) harmonises the mandatory indication of the country of origin or place of provenance of foods with the exception of certain categories of foods, such as milk as a nal product or as an ingredient without precluding further additional national requirements under certain conditions.

Nº31 · OCTOBER, 3 2020

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Library - Book Review JORRIT J. RIJPMA (ED.)

By Christopher Kuner

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FIDE PUBLICATION: THE NEW EU DATA PROTECTION REGIME: SETTING GLOBAL STANDARDS FOR THE RIGHT TO PERSONAL DATA PROTECTION A review nding that ‘the challenges of elucidating such a complicated legal regime are overcome impressively in this new book, which is a major addition to the data protection literature’.

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