Weekend Edition Nº37 by eulawlive

Nº37

NOVEMBER 14

2020

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A SPECIAL ISSUE ON THE EUROPEAN ECONOMIC AREA CATH HOWDLE

MAGNUS SCHMAUCH

FINANCIAL SERVICES: A NOVEL SYSTEM OF DECISION-MAKING IN THE EEA

EU FINANCIAL REGULATION IN THE EEA – IS IT DIFFERENT?

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Financial Services: A novel system of decision-making in the EEA Cath Howdle

EEA EFTA States have a duty to make such legislation part of their national legal orders.

Preliminaries: a whistlestop tour around the institutional structure of the EEA

The EEA’s institutional compliance structure reects this ‘two pillar’ system, with separate surveillance and court institutions. Each pillar is self-policing, and responsible for its own compliance mechanisms. The Commission is to ensure the EU Member States full their EEA law obligations in the EU pillar, and in the EFTA pillar the body that normally oversees compliance is the EFTA Surveillance Authority. The CJEU and EFTA Court serve to provide day-to-day judicial oversight in each pillar. In the EFTA pillar, this compliance structure is established by a framework commonly known as the Surveillance and Court Agreement (SCA).

The European Economic Area (EEA) covers the EU Member States and the three EFTA States - Iceland, Liechtenstein and Norway. The foundational document for the EEA, the EEA Agreement, enables the EEA EFTA States to participate in the EU’s Internal Market. For this set-up to work effectively, it is necessary to have a ‘dynamic, homogeneous’ European Economic Area where, over time, the same rules are applicable in both the EU and in the EEA EFTA States. In order to create this level playing eld within both the EU and the EFTA ‘pillars’ of the EEA, the EEA Agreement sets out a mechanism whereby EU legislation is incorporated into the EFTA pillar. This incorporation takes the form of a decision of the EEA Joint Committee - a body comprising representatives from the EEA EFTA States and the European External Action Service. A Joint Committee decision will normally add a reference to the EU legislation into the lists set out in the relevant annex to the EEA Agreement. Following such incorporation, the

A point that is not often emphasised, but which is nonetheless important, is that the EEA Agreement dates from 1994 and has retained the same structure since that point in time. Notably, the EEA’s institutional set up pre-dates the rise in the EU of ‘agencication’ and delegated acts. When EU legislation entails an exercise of powers by agencies, the transposition of this legislation into the EEA legal order has therefore given rise to a number of challenges.

1. The Author is Deputy Director of the Legal and Executive Affairs Directorate at the EFTA Surveillance Authority (ESA), and writes in a personal capacity without necessarily expressing any position of ESA. I am grateful to my colleague Marco Uccelli for assistance with this article, and any mistakes or oversights remain my own.

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As nancial services is an EEA-relevant eld falling within Annex IX to the EEA Agreement, the proposal of EU legislation triggered the incorporation process outlined above. This process took a longer time than

This article gives an overview of the EFTA pillar’s institutional setup in the eld of nancial services, and explores how some of the institutional challenges have been met in that eld.

The EEA Agreement dates from 1994 and has retained the same structure since that point in time

The adoption of the nancial services institutional framework

usual, with discussions starting around 2010 and concluding only in 2016.

Following the 2008 nancial crisis, the EU adopted a raft of legislation aimed at better regulating and supervising the nancial services sector. This raft of nancial services legislation established the European supervisory authorities: the European Securities and Markets Authority (ESMA); the European Banking Authority (EBA) and the European Insurance and Occupational Pensions Authority (EIOPA). Together, these bodies have the acronym ‘ESAs’, but to avoid confusion with the EFTA Surveillance Authority, they are referred to here as the ‘EU ESAs’. With delegated regulatory powers, the EU ESAs form the backbone of EUlevel nancial services supervision in the EU.

In incorporating EU law into the EEA Agreement, the parties may make necessary adaptations to the legislation in order to t the delegated decision-making structure established in the EU to the demands of the EFTA pillar, where there is no legislature. Here, as the EEA-EFTA States could not accept binding decisions made by EU institutions directly, the Joint Committee sought a solution for the EU ESAs’ powers of intervention and approval/supervision of credit ratings agencies and trade repositories. This solution was found in the adoption of Protocol 8 SCA, which gave ESA new powers and paved the way for the EU’s raft of nancial services legislation to be incorporated into Annex IX to the EEA Agreement.

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In addition to its regular compliance activities, ESA acts as the nancial services institution for the EFTA pillar. Under the parameters set out in the applicable regulations (notably Regulations No 1093/2010, No 1094/2010, No 1095/2010, as adapted to the

Current EEA EFTA set up ESA’s regular compliance activities consist of: (i) checking that the EEA EFTA States have included in their national legal order the EU legislation that has been incorporated in-

Protocol 8 SCA gave ESA new powers and paved the way for the EU’s raft of ﬁnancial services legislation to be incorporated

ESA acts as the ﬁnancial services institution for the EFTA pillar

EEA framework) and in a multilateral MOU, ESA and the EU ESAs cooperate as independent entities. This cooperation entails the following:

to the EEA Agreement’s Annexes; then (ii) ensuring the legislation is applied correctly, both on paper and in practice. In these compliance activities, ESA’s work in the nancial services eld is the same as in other elds covered by the EEA Agreement: undertaking own-initiative investigations and responding to complaints.

Process participation: ESA is entitled to participate in the board of supervisors and preparatory bodies, including internal committees and panels at the EU ESAs (and vice versa). ESA participates in the processes of the EU ESAs as a non-voting Member. The limitation on the right to vote (on those decisions that do come to a vote) is, however, perhaps less signicant from a process perspective than being in ‘the room where it happens’ and having a say in the discussions underpinning the taking of nuanced decisions. Case-handling and knowledge sharing: ESA’s cooperation with the EU ESAs at the board and executive levels is complemented by the ongoing exchange of information and know-how at case-handling level. This is particularly the case regarding the preparation of decisions.

One unusual factor is that the fast rate of creation of nancial services legislation in the EU, together with the delay in incorporation of that legislation into Annex IX EEA, occasionally leads to a regulation only becoming part of the EEA EFTA pillar when its successor has already been adopted in the EU. More commonly, an EEA EFTA State may see only a few months between transposing one regulation and contributing to the Joint Committee discussion on the next. This presents challenges and a need for good cooperation between ESA and the States.

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Taking of non-binding decisions: with the understanding that only ESA adopts binding decisions in the EFTA pillar, the EU ESAs are designated as the institutions that adopt nonbinding material such as guidelines, recommendations and make reports, and that carry out non-binding investigations and mediation. This allocation of responsibility is for reasons of economy, but it is again important to recall that ESA’s participation in the EU ESAs’ processes ensures that the EFTA pillar’s perspective is not overlooked.

EFTA pillar decision-making: ESA adopts decisions that are binding on national competent authorities and market participants in the EFTA States. In order to benet from the EU ESAs’ considerable technical expertise and experience, ESA takes these decisions on the basis of drafts prepared in the relevant EU ESA. However, the taking of the decision in the EFTA pillar goes beyond a formalistic process in two particular respects. First, as an independent entity, ESA does not have to take the decision (and in case of divergences of view, a co-operation process would be triggered). Second, the draft received from the EU ESAs will be one in which ESA has already had an input by virtue of the cooperation mechanisms outlined above.

There may eventually come a time when the EFTA Court is asked to address the institutional questions

Five decisions have been taken so far: Decision No 071/18/COL on the grant by ESA of registration to Nordic Credit Rating AS; Decision No 023/20/COL granting a temporary opt-out under MiFIR to Nasdaq Oslo ASA, and Decisions No 020/20/COL, 056/20/COL and 106/20/COL on reporting of short positions.

Outlook The cooperation has made a good start, and experience is likely to rene the processes. Looking to the future, further institutional developments are already in progress on the EU side, which may also affect ESA’s responsibilities and powers. And nally, on the EFTA side there may eventually come a time when the EFTA Court is asked to address the institutional questions – in particular those arising from the differences and the interplay between the two pillars’ institutional structures – that would be raised in the course of considering an eventual application for the annulment of an ESA decision in this eld.

Regulatory duties: ESA is in charge of the registration and supervision of credit rating agencies and trade repositories in the EEA EFTA States and can issue binding decisions including inspections and nes. These decisions are again prepared on the basis of ESMA drafts, but are also subject to technical input and advice from the EEA EFTA States before adoption. As routine data reporting from EEA EFTA State based credit rating agencies is handled by ESMA, this necessitates close cooperation between the EU and EFTA institutions to ensure a good level of monitoring and adequate regulatory action if required.

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EU Financial Regulation in the EEA Is it diﬀerent? Magnus Schmauch

Agreement. On the other side in this ‘twopillar model’ are the EFTA States Norway, Iceland and Liechtenstein, which form the ‘EFTA pillar’ of the EEA.

Introduction – The Sausage Factory

The EEA Agreement extends the four freedoms, competition law and the law on State aid to three EFTA States. When it entered inThe two-pillar dimension of the EEA Agreeto force in 1994, many saw it as a temporary ment is fundamental in order to understand agreement, merely more than a ’waiting the constitutional background to the incorroom’ for states that poration of EU nanwanted to enter the Eucial regulation into the ropean Community. In EEA Agreement. As a part this proved correct. The end result is a situation matter of fact, the deciShortly after, in 1995, sion-making has been Sweden, Finland and of cross-memberships transferred into the Austria left the EuroEFTA pillar of the EEA pean Free Trade AssoAgreement and instituciation and the EEA to tions run and governed become members of the by the EFTA States, Community. As it happens, however, they resuch as the EFTA Surveillance Authority in mained in the EEA, since the Community Brussels and the EFTA Court in Luxemand its Member States are contracting parbourg. ties. In order to add to the mess, Norway and Iceland remained in the EFTA where they Procedural aspects of incorporation were joined by Liechtenstein. Switzerland had a referendum on being a part of the EEA, to which the majority voted ‘no’. The short description of the incorporation of EU law into the EEA Agreement is simple. The end result is a situation of crossWhen a legal act is adopted in the EU and it memberships. The EEA is a ‘mixed agreeis relevant for the EEA Agreement, it is conment’, to which the EU as well as its Memsidered inter alia by the EEA Joint Commitber States are contracting parties. These tee, established by Article 92 EEA. The EEA form the so-called ’EU pillar’ of the EEA Joint Committee takes decisions by agree-

1. Magnus Schmauch, PhD, was formerly Legal Secretary at the EFTA Court, and is now Senior Legal Advisor at Finansinspektionen (Swedish Financial Supervisor). The opinions expressed are the personal view of the author.

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the procedural rules in the agreement are still modelled on the general principles on harmonisation through directives, which was prevalent in EU legislation in the early 90s. This is well illustrated by the wording of Article 102 EEA which clearly foresees the incorporation into the EEA Agreement of a legal act with an implementation period, a period that should be long enough to both assess the act in relation to the EEA Agreement, but also ensure national implementation at the same time as in the EU.

ment between the EU, on the one hand, and the EFTA States speaking with one voice, on the other (Article 93 EEA). One of its main tasks is to decide on the incorporation of EU law into the annexes of the EEA Agreement, thereby making it applicable in the EFTA pillar of the EEA and ensuring full crossborder applicability of these rules. The Joint Committee has the power to amend EU legislation, so-called ‘adaptations’, in order to make it correspond better to the structure of the EEA Agreement. Adaptations are often considered and suggested by the EFTA States in the Joint Committee and can be subject to negotiations between the contracting parties.

In recent years, the number of regulations in relation to the number of directives in EU law has risen. Moreover, the advent of implementing regulations and delegated regulations have increased the total number of legal acts, some of which are highly technical in nature.

It can be added at this point that the EEA Agreement has not undergone any substantial changes since its inception. As a result,

The EEA Agreement has not undergone any substantial changes since its inception

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2010s that the incorporation process started moving again. As a result of these delays, MiFID II was incorporated into the EEA Agreement with full effect only on 3 December 2019, almost two years after the end of the implementation period in the EU.

As a result, the EFTA States have devised a three-layered system for the incorporation of EU law into the EEA Agreement. The main procedure is still the one laid down in Article 102 EEA. In addition to this, there is a fast-track procedure that also covers nancial regulation. The fast-track procedure is used when there are no EEA horizontal challenges and no constitutional requirements are called for (more on this later). The simplied procedure, nally, is used in the veterinary eld and is of no further relevance here.

The adaptations, backlog and delays pose a very specic challenge in the ever-changing context of nancial regulation. The EMIR (Regulation 648/2012 on Market Infrastructures) entered into force in the EEA on 1 July The adaptations, backlog 2017, a few years after it became directly apThe reason for the creaand delays pose a very plicable in the EU. Motion of three different reover, the EEA verprocedures was the inspeciﬁc challenge in the sion of EMIR is subcreasing workload and ever-changing context of ject to a large number the increasing delays of adaptations which caused by backlogs in ﬁnancial regulation reect the two-pillar the EEA Joint Commitnature of the EEA tee. These delays can be Agreement. As a recaused by a backlog but sult, a consolidated also by political conversion is available cerns or ongoing negoon the homepage of the EFTA Secretariat. tiations between the EU and the EFTA SeMoreover, the incorporation of many modicretariat on adaptations to EU legislation becations to the original EU version of EMIR fore it can be presented to the EEA Joint are still pending incorporation into the EEA Committee. Agreement. The major revisions of EMIR in 2019 (called EMIR 2.0 and EMIR 2.2) have Some illustrative examples show how this not yet been incorporated into the EEA can affect the entry into force of EU legislaAgreement. As a result the ‘old’ EMIR Regution in the eld of nancial regulation. Due lation is still applicable within the EEA, and to the struggle to cope with the new decithe ‘new’ EMIR will be applicable only in sion-making powers of the EU ESAs the EU pending the incorporation in the (ESMA, EBA and EIOPA), the incorporaEEA Agreement. A very real practical contion of EU nancial regulation into the EEA sequence of such a situation is the legal unAgreement after the nancial crisis came to certainty linked to the scope of an authorisaan almost complete stop. It was only after an tion of a regulated entity (such as a central agreement on the political level in the mid-

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scope of what is the ‘affected part’ of the EEA Agreement. For instance, if a modication to an EU legal act leads to suspension, the main act may also be suspended if it is incorporated in the EEA. It could be imagined that a suspension could suspend the direct effect of EU law for citizens from the EFTA States. Of particular interest is, again, the validity of authorisations to engage in regulated activities and the scope of supervisory powers, although these adverse effects should be mitigated under Article 102(6) EEA, at least for economic operators.

counterparty or a bank) under a modied legal act or the scope of supervisory powers of relevant authorities. From a practical point of view, in particular, the delays can cause a disruption in the free movement of capital and investments from the EU Member States in and out of the EFTA States. One such example is the European Venture Capital Funds Regulation (EuVECA, Regulation 345/2013), where any applications from Norway to provide cross-border services under the Regulation may be denied by Swedish authorities due to a lack of cross-border effect of these rules.

Decision-making in the European Authorities

One nal note on the delays, which have not yet become a practical issue, are the rules on what could be called ‘technical’ suspension in Article 103 EEA. If the EFTA States have indicated so-called constitutional requirements under this rule (so that the EFTA States can introduce national legislation for implementation in time before incorporation in the Agreement), they have six months after a decision of the EEA Joint Committee to decide whether they can accept provisional applicability of the EU rules in the EEA Agreement or not. If not – and this is regularly the case by notifying a ‘delay’ – the ‘affected part’ of the EEA Agreement is suspended one month after the notication or at the date of implementation in the EU, whichever comes later. In today’s environment of regulations being the norm rather than the exception in nancial regulation, this rule carries a potential equal to an atomic bomb. The reason is that the legal implications of a suspension and its effects has not yet been explored in depth. There are a number of practical issues that remain to be analysed, such as the

The contribution by Catherine Howdle in this Weekend Edition relates to the decisionmaking procedures in the EFTA pillar of the EEA when it comes to European nancial supervisory authorities. These powers have been transferred from the EU authorities to the EEA counterparties. These follow from adaptations to the underlying EU legal acts in the context of EEA Agreement. Of particular interest are the ‘Breach of Union Law’ or BUL-proceedings which follow a distinct procedure in the EFTA pillar of the EEA. As you can tell from Catherine’s excellent contribution this follows a different step. However, it should be kept in mind that the EEA law that is subject to these procedures must not always be identical to the EU rules from whence they come. Adaptations and delays currently cause discrepancies in the regulation in cross-border situations. Moreover, it could be argued that the EU ESAs can

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only apply incorporated EU legislation, as amended by the EEA Joint Committee in the EFTA pillar of the EEA.

This relationship is more than just legalistic window-dressing

Conclusion In April this year, the Court of Justice concluded that the EEA Agreement is part of a set of rules that form a special relationship with the European Union, which goes beyond economic and commercial cooperation (Russian Federation, C-897/19 PPU, paragraph 44). Together with the similar institutional structure, notably the EFTA Court and the EFTA Surveillance Authority, this relationship is more than just legalistic window-dressing. In particular for the Nordic countries, the EEA Agreement ensures cross-border ows of investments and capital. However, this relationship, like any real relationship, is not entirely without challenges. In particular the legal intricacies of the incorporation process may lead to practical problems in the context of cross-border activities of regulated entities. In particular situations where the legal texts have been modied in the EU – or even replaced entirely –

can lead to difcult outcomes. This is particularly true where a directive such as the original MiFID has been repealed in the EU and replaced by a new directive (MiFID II) and a new regulation (MiFIR) and the national legislation in the EU Member States amended accordingly but the original directive remains in force in the EEA Agreement. However, it is my experience that these problems usually can be overcome also at the administrative level to some extent, both in the EU and in the Member States. As a result, the adverse effects can be mitigated. Nevertheless, the risk for disruptions due to these legal risks cannot be entirely dismissed. Thankfully, in spite of the increasing complexity of nancial regulation in the EU and the EEA, this has not yet been taken to test. So, EU nancial regulation in the EEA, is it different? Yes, it is indeed, but it could also be added that we hope it to remain the same as in the Union

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News Highlights Week 9 November to 13 November 2020

Commission President expresses intent for renewed transatlantic relations post-US election Monday 9 November

Action against Commission’s waiver of ‘non-reacquisition’ clause Monday 9 November

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Ofcial publication was made of an annulment action (T-583/20) brought by Italia Wanbao-ACC Srl against the European Commission’s decision to waive the ‘nonreacquisition’ clause relating to the acquisition by Nidec Corporation of control of Embraco, belonging to the Whirlpool Corporation.

The European Commission President congratulated Joe Biden on his victory in the US presidential election, remarking on the view for a future relationship with the US under a new leader.

Council issues Conclusions aiming to strengthen WHO and global health security Monday 9 November

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Commission publishes study on greener cloud services and data centres Monday 9 November

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Conclusions were approved by the Council of the EU on strengthening the World Health Organization and global health security, recognising the need for strong global and multilateral cooperation in public health matters.

The European Commission published a study on energy-efcient cloud computing technologies and policies for an eco-friendly cloud market, addressing exponential growth in energy consumption, as well the development of voluntary and regulatory policy instruments.

FRA warns against threat of antisemitism on the anniversary of the ‘Kristallnacht’

Action against inadmissibility of request for internal review under Aarhus Regulation

Monday 9 November

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Ofcial publication was made of an annulment action T569/20) brought by a Dutch citizen’s council against a European Commission decision rejecting a request for an internal review (under Article 2(2) of the Aarhus Regulation) of a decision to close a complaint le.

The EU Agency for Fundamental Rights issued a reminder of the threat posed by antisemitic behaviours in EU Member States, to mark the 82nd anniversary of the socalled Kristallnacht, a series of anti-Jewish pogroms which took place in Nazi Germany on November 9-10, 1938.

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Recovery and Resilience Facility: key features and mandate for negotiations approved by European Parliament Tuesday 10 November

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The Committees for Budgets and for Economic and Monetary Affairs of the European Parliament approved the objectives and the rules for nancing and for providing funding of the Recovery and Resilience Facility, as well as a mandate to enter into negotiations with EU governments thereon.

ECtHR’s rulings on freedom of religion and meals provided to prisoners Tuesday 10 November

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The European Court of Human Rights handed down two Chamber judgments regarding the freedom of religion under Article 9 of the European Convention on Human Rights and the treatment by Romanian authorities of prisoners.

EBA advises ﬁnancial institutions to ﬁnalise contingency plans for end of Brexit transition period

Boeing case: EU imposes countermeasures against US exports following WTO authorisation

Tuesday 10 November

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Recalling that UK authorised nancial institutions will not be able to provide nancial services to EU customers on a passporting basis once the UK-EU transition period ends on 31 December 2020, the European Banking Authority advised that nancial institutions offering services to EU customers should nalise their contingency plans.

The European Commission announced that it will impose countermeasures on US exports worth 4 billion dollars following the lack of American initiative in order to provide the basis for a negotiated settlement in the Boeing and Airbus WTO cases.

Commission v Italy: Court of Justice’s ruling clarifying Member State’s obligations under the Air Quality Directive

Parliament and Council reach agreement on new export rules on dual use goods

Tuesday 10 November

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The Grand Chamber of the Court of Justice handed down its judgment in Commission v Italy (C-644/18), ruling that Italy infringed the Air Quality Directive 2008/50 by failing to adopt in good time measures to terminate the systematic and persistent exceeding of the limit values applicable to concentrations of PM10.

The European Parliament and the Council of the EU reached an agreement on the modernisation of EU export rules on dual use goods and technologies, subjecting to stricter export controls goods that may potentially be misused as cyber-surveillance technology.

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Package travel organiser vicariously lia- Czech State aid scheme for compensable for hotel employee’s rape and as- tion to energy-intensive companies apsault of a hotel guest: AG Szpunar proved by Commission Tuesday 10 November

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The organiser of a travel package is liable for an employee’s ‘acts or omissions’ in performing the contract under Travel Package Directive 90/314 – in this case a hotel employee’s rape and assault of a hotel guest, according to Advocate General Szpunar in his Opinion X v Kuoni Travel Ltd (C-578/19).

Commission sends statement of objection to Amazon over data use and opens second investigation into e-commerce business practices Tuesday 10 November

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The European Commission announced two sets of antitrust actions against Amazon: it issued a Statement of Objections concerning its use of non-public independent seller data, and an investigation into its practices regarding its ‘Buy Box’ and ‘Prime’ labels.

Post-pandemic recovery plan: Council Presidency and European Parliament reach political agreement Tuesday 10 November

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The German Presidency of the Council announced that it has reached a political agreement with the European Parliament’s negotiators regarding the EU’s Multiannual Financial Framework (MFF).

Tuesday 10 November

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The European Commission announced its decision to approve Czech plans to partially compensate energyintensive companies for higher electricity prices resulting from indirect emission costs under the EU Emission Trading Scheme (ETS).

Community Plant Variety Ofﬁce seeking President Tuesday 10 November

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Publication was made of a vacancy for the role of President at the Community Plant Variety Ofce (CPVO) based in Angers, France.

Spanish Government announces new appointments system to the Court of Justice of the EU and the European Court of Human Rights Wednesday 11 November

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The Spanish Council of Ministers approved a Royal Decree establishing a new system governing the selection of Judges and Advocates General for the Court of Justice of the EU, and Judges for the European Court of Human Rights.

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Court of Justice: a pre-ticked box does not constitute valid consent Wednesday 11 November

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The Court of Justice ruled in Orange Romania (C61/19) that a contract containing a clause stating that the consumer has consented to data collection does not demonstrate valid consent has been provided when it has been pre-ticked.

Liability for unauthorised contactless transactions and unilateral contractual amendments: Court of Justice clariﬁes interpretation of Payment Services Directive Wednesday 11 November

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In DenizBankAG v Verein für Konsumenteninformation, (C-287/19), the Court of Justice has handed down its ruling clarifying the interpretation of certain provisions of the Payment Services Directive 2015/2366 in a case concerning NFC payments and unilaterally amended contracts.

AG Pitruzzella: ‘working time’ notion applies to all working contracts concluded by the same worker and employee Wednesday 11 November

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Advocate General Pitruzzella delivered his Opinion in Academia de Studii Economice din Bucureşti (C585/19), advising the Court of Justice to rule that the notion of ‘working time’ under the Working Time Directive applies to all employment contracts concluded by the same worker and employee.

Commission presents three legislative proposals to build a European Health Union Wednesday 11 November

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In order to move towards a European Health Union the Commission presented a Communication including three legislative proposals, advocating that the EU take a more active role in matters of health, through a stronger EU health security framework and crisis management system, supported by key EU agencies.

State aid: Italian banks – liquidity sche- EU intellectual property policy: Council me approved by Commission conclusions Wednesday 11 November

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The European Commission has announced that it has authorised a liquidity scheme to support Italian banks if necessary, by allowing the Italian State to grant them guarantees on newly issued liabilities and on Emergency Liquidity Assistance from the central bank, up to a total nominal amount of 19 billion euros, until 20 May 2021.

Wednesday 11 November

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The Council of the European Union has adopted conclusions (by written procedure) on a future EU intellectual property policy covering IP protection, transparency, patents, sui generis protection of agricultural products, and industrial design protection.

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Questions on indirect discrimination on grounds of sex in decision determining amount of retirement pension published Wednesday 11 November

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The Court of Justice will hear a case on indirect discrimination on the grounds of sex concerning the amount of a retirement pension in BVAEB (C-405/20), the referring court’s questions having been published.

ECA reports slow progress on Capitals Market Union Thursday 12 November

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The European Court of Auditors presented a report nding that the Capital Markets Union still has a long way to go before it is completed. Auditors found that priorities were too vague and set too late, and that expectations may have been set too high.

ECtHR unanimously dismisses as inadmissible and ill-founded a complaint by a former SS Auschwitz camp guard Thursday 12 November

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The European Court of Human Rights unanimously dismissed the application brought by a former member of the German SS about the length of the criminal proceedings against him for assisting in murder in the Auschwitz extermination camp.

Court of Justice conﬁrms that Article 8(3) applies to ‘similar’ trademarks Wednesday 11 November

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The Court of Justice upheld the EUIPO’s appeal in EUIPO v John Mills (C-809/18 P) against General Court ruling T-7/17 on the ground that it infringed Article 8(3) of the Trademark Regulation.

EDPS: temporary derogations from ePrivacy Directive to combat child sexual abuse online set a dangerous precedent Thursday 12 November

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The European Data Protection Supervisor released an opinion on the European Commission’s proposal for temporary derogations from the e-Privacy Directive (2002/58) for the purpose of combatting child sexual abuse online, recommending EU institutions not to adopt the proposal, even in the form of a temporary derogation.

How can mixed holding companies deduct input VAT? Court of Justice’s ruling Thursday 12 November

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The Court of Justice handed down its judgment in Sonaecom (C-42/19), a preliminary ruling on how the right to deduct input tax under the Sixth VAT Directive 77/388 applies to mixed holding companies when they change their planned activity to a new one.

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European Public Prosecutor’s Ofﬁce ap- Court of Justice’s ruling on the condipoints two Deputy European Chief Pro- tions for mutual recognition of national decisions regarding withdrawal of secutors authorisations of insurance undertaREAD MORE ON EU LAW LIVE Thursday 12 November kings The College of the European Public Prosecutor’s Ofce elected by secret ballot Danile Ceccarelly (Italy) and Andrés Ritter (Germany) as Deputy European Chief Prosecutors.

Thursday 12 November

Fourth Annual Report on the Implementation of the European Union’s Trade Agreements in 2019 published

Frontex dealing with reports about its unlawful migrant pushbacks in violation of international law

Thursday 12 November

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The Fourth Annual Report on the EU’s trade agreements with 65 preferential partners through 36 major preferential EU trade agreements was published. The report states that these trade agreements cover a third of the EU’s external trade with third countries, worth 1.345 billion euros in 2019.

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The Court of Justice gave its judgment in Bulstrad Vienna Insurance Group (C-427/19), in response to a request for a preliminary ruling from the Soa District Court, Bulgaria. The case concerns the interpretation of Article 274 of the Solvency II Directive.

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Frontex held an urgent extraordinary board meeting on Tuesday upon the request of the European Commission, further to reports about its involvement in unlawful migrant pushbacks in violation of international law and EU law such as the right to asylum under the EU Charter.

AG Hogan: temporary derogation un- Commission presents ﬁrst-ever EU Strader maintenance and jurisdiction regu- tegy for LGBTIQ Equality lation does not apply for decisions maREAD MORE ON EU LAW LIVE Thursday 12 November de pre-EU accession Thursday 12 November

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In TKF v Department of Justice for Northern Ireland (C-729/19), Advocate General Hogan advised the Court of Justice to nd that the derogation under Article 75(2) of Regulation 2/2009 on jurisdiction in maintenance matters does not apply to courts of Member States that were not members of the EU when the decisions were made.

The European Commission presented the rst-ever EU Strategy to address the inequalities and challenges affecting lesbian, gay, bisexual, trans, non-binary, intersex, and queer people. The Strategy aims to ensure that LGBTIQ concerns are well reected in EU policymaking.

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AG Campos-Sánchez Bordona: systemic deﬁciencies of judicial independence in Poland do not justify automatic non-execution of all EAWs Thursday 12 November

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Advocate General Campos Sánchez-Bordona in Openbaar Ministerie (Joined Cases C-354/20 PPU and C412/20 PPU), advised that though systemic or generalised deciencies regarding the independence of the judiciary in Poland exist, it is not possible to automatically suspend application of the Framework Decision for all European Arrest Warrants issued by Polish courts.

Revision of Commission’s Guidelines on State aid for environmental protection and energy: public consultation opened Friday 13 November

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Further to the European Commission’s Inception Impact Assessment outlining its initial ideas for the revision of its Guidelines on State aid for environmental protection and energy, a public consultation was launched. Interested stakeholders can submit comments on its interplay with the implementation of the European Green Deal until 7 January 2021.

EU sanctions concerning Venezuela extended to 14 November 2021 Friday 13 November

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The Council of the European Union extended EU sanctions against Venezuela for a further year, until 14 November 2021, on the ground that there are ongoing and persistent actions undermining democracy, the rule of law and respect for human rights, through CFSP Decision (2020/1700).

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European Space Policy: Council of the EU adopts conclusions Thursday 12 November

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The Council of the European Union adopted conclusions on a European Space Policy which would reect ‘autonomy, security and resilience’ through the coordinated actions of the EU, European Space Agency, and the Member States, ‘based on parallel competences’ and ‘fully respecting the institutional settings’.

ESMA: reports on use of sanctions under the AIFM Directive and the UCITS Directive Friday 13 November

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The European Securities and Markets Authority published two reports on the use by National Competent Authorities of sanctions under two separate legal instruments: the AIFMD Directive and UCITS Directive.

Frontex dealing with reports about its unlawful migrant pushbacks in violation of international law: Management Board adds its view Friday 13 November

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In response to reports of Frontex’s involvement in unlawful migrant pushbacks in violation of international law, the Conclusions of the Chairperson of the Frontex Management Board were published to address the matter.

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Comparative legal research notes published by Court of Justice

Removal of Neda Industrial Group from EU sanctions against Iran

Friday 13 November

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The Court of Justice published seven comparative Research Notes that are prepared by its Research and Documentation Directorate, which have traditionally not been available to the public, and are used for internal purposes to ‘feed into its work’. Research Notes cover research in all areas of EU law.

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Council CFSP Decision (2020/1699) and Council Implementing Regulation 2020/1695 have been published today, removing Neda Industrial Group from the EU’s list of sanctions against Iran, following the judgment of the General Court in Neda Industrial Group v Council of the European Union, T-490/18 which annulled Council Decision (CFSP) 2018/833 in respect of that company.

Insights, Analyses & Op-Eds EU Institutional Law in Times of Pandemic (Part I): the rule of law and the limits By Dolores Utrilla

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Insight on the overall meaning and implications of COVID-19 related measures on EU institutional law, from the cross-cutting perspective of the role of law (that is, the functions performed by legal rules and principles within the EU legal space). Dolores Utrilla argues that the ongoing crisis is fostering certain structural transformations as regards the mechanisms for enforcement of the rule of law, and also as regards the limits of law to steer the action of EU, national, and private actors.

Library - Book Review Tobias Lutzi

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Private International Law Online: Internet Regulation and Civil Liability in the EU Review of a book providing an excellent analysis of the regulatory potential of private international law to address the challenges posed by cross-border online activities. The book further proposes a specic model to reduce fragmentation of jurisdiction and applicable law that should be taken into consideration in future discussions on the evolution of EU private international law.

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EU Law Live Podcast

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A FIDE Conversation on Data Protection with Anna Buchta, Herke Kranenborg and Orla Lynskey In this podcast, the institutional rapporteurs and general rapporteurs discuss a report they drafted for the FIDE Conference in 2021, covering a topic of great importance: data protection and the setting of global standards through EU law.

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