Weekend Edition Nº43 by eulawlive

Nº43

JANUARY 16

2021

weekend

edition stay alert keep smart

2020 IN THE UNION’S COURTS TEN LEADING JUDGMENTS OF THE YEAR DANIEL SARMIENTO

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

2020 in the Union’s Courts Ten leading judgments of the year Daniel Sarmiento

on the most important competition, trade, or privacy judgment of the year. Each selected judgment is relevant because it has a systemic inuence in the overall legal system of the EU.

2020 was, without a speck of doubt, the year of COVID-19. However, if a reader of the Court of Justice’s case law looks back at 2020 from a distant future, nothing would really indicate that the world, as well as Luxembourg and Europe’s top-court, were at the time in the midst of an awful health crisis devastating lives, families and jobs with no mercy. In terms of case law and the development of EU law, 2020 was an important year, but not because of COVID-19. In fact, 2020 was a relevant year for EU case law despite COVID-19, and this selection of ten leading judgments is good proof of it.

Second, the judgments were selected among the Grand Chamber’s rulings of the year. This doesn’t mean that ve or three chamber rulings were neglected, but a preference was given to the Grand Chamber and, as a result, all the selected judgments were rendered by this formation of the Court. This is unsurprising, but it has been easier to do this year. The Grand Chamber has become a much more frequent forum for decisions of relevance from the Court of Justice. In previous years it was not exceptional to nd an important ruling in a more modest formation (sometimes even in an Order). This has not been the case this year.

As always, selections are personal and arbitrary. They reect the preferences of the selector and they should not be understood as an attempt to nd objective truth. This collection is simply a subjective choice based on the preferences of this author, which will probably shed a light on many personal conscious and unconscious biases. However, I tried to make these choices relying on some objective criteria (or objective as they can get) to reach a reasonable and fair outcome.

Third, the selection focuses on the Court of Justice, but attention has also been paid to the developments taking place in the General Court. Rulings of the General Court are difcult to categorise in this top-ten annual list, due to the fact that all or almost all of its important rulings end up being appealed at the Court of Justice. However, in this year, two judgments stood out from the rest: the

First, each judgment in this selection provides a general contribution with an impact on all or most of the relevant areas of EU policy. This is not a sector-based selection, focusing

1. Professor of EU Law (Complutense, Madrid) and Editor-in-Chief of EU Law Live.

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

2020 was an important year for the development of EU law in general

The selection does not deal with the Opinions of the Advocates General, but 2020 witnessed some remarkable contributions from the collège des Avocats généraux. Advocate General (AG) Hogan’s Opinion in the Pinxten case was a remarkable tour de force to nish off the year with a powerful fanfare in a plenary case of enormous signicance for EU Institutions (and its members), whilst AG Pitruzzella provided some excellent reections in a broad variety of elds, from monetary policy to State aid, but always keeping a constitutional perspective on things, which is always very welcome. AG Campos Sánchez-Bordona became the Court’s expert in sensitive cases in the Area of Freedom, Security and Justice, issuing some key Opinions in strategic cases on the European Arrest Warrant. AG Bobek provided valuable contributions on a broad variety of important cases in an accessible style, but always with highly insightful analyses forcing the Court to think things through in nonconventional ways if necessary. A tragic development of 2020 was the loss of the singular voice of AG Sharpston, in circumstances that are still awaiting a nal ruling of the Court of Justice. But in sum, 2020 was a fer-

Apple and Ireland cases on State aid and tax rulings are a huge development that, irrespective of what the Court of Justice eventually decides on appeal, constitute a seminal development for the General Court. With these criteria in mind, the selection shows that 2020 was an important year for the development of EU law in general. The Court of Justice took some important decisions in the shaping of EU remedies, but it also pushed integration forward by reinforcing the primacy of EU law, its autonomy and some strategic policy objectives, like environmental protection. The case law also took some steps backward and showed more self-restraint in other domains: Chrysostomides conrmed that citizens still face important gaps in their legal protection in very important areas of policy, whilst the dialogue with national courts became a bit more constrained after Banco de Santander, on the notion of a ‘jurisdiction’ pursuant to Article 267 TFEU. 2020 gave the Court an apparent break on rule of law issues, but only for a while. Several Opinions of the Advocates General show that 2021 will be another important year in this terrain.

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

preliminary references of validity and, after Bank Refah, damages actions. Closing this gap as much as possible has important ramications beyond the specic domain of CFSP: accession to the European Convention of Human Rights is back on the negotiating table and the incomplete system of remedies in the area of CFSP has been a traditional obstacle The Court of Justice came that nobody really knows how to solve without full-circle in conﬁrming Treaty reform. After Bank the completeness of the Refah the Union’s system Union’s system of judicial of remedies looks better, but other judgments of review in the ﬁeld of CFSP 2020 show that additional work is still needed.

tile ground for imaginative and thoughtful Opinions from the Court’s internal and privileged think-tank, conrming once again that Advocates General are one of the Union’s most valuable treasures, well worth preserving.

Bank Refah (C-134/19 P)

It has taken a long time, but nally the Court of Justice came full-circle in conrming the completeness of the Union’s system of judicial review in the eld of CFSP. Of course, it is a rather constrained vision of completeness, because Article 24(1) TEU still excludes jurisdiction of the Court of Justice, but it nevertheless ensures judicial review in the eld of restrictive measures. There is still a gap, but Bank Refah conrms that the Court’s jurisdiction in the eld of restrictive measures has to be interpreted as expansively as possible. In this specic case, the doubts concerned the use of damages actions on the grounds of Article 24(1) TEU, and the Court gave a resounding answer in the positive. This might not seem so surprising at this stage, but we needed this conrmation from the Court (and it is even better coming from the Grand Chamber), not by deducing it from the cryptic reasoning of past rulings. Also, Advocates General were not unanimous when arguing how to handle remedies in the area of CFSP. So now we have the full picture, or as full as it can get, conrming that Article 24(1) TEU opens the door not only to actions of annulment, but also to

Council v Chrysostomides (Joined Cases C-597/18 P, C-598/18 P, C-603/18 P and C-604/18 P) The question of principle brought before the Court in Chrysostomides was a straightforward one and somewhat related to the issues in Bank Refah: ...is the Union's liability compromised by the Eurogroup's actions? The General Court ruled that indeed it is, but the Court of Justice, in a surprising rebuke of its line of reasoning in Bank Refah, disagreed. Following the Opinion of AG Pitruzzella, the Court held on to the vague powers conferred on the Eurogroup, and its pseudointergovernmental nature, to conclude that its decisions will need further implementation. It will be those implementing acts by the Council, the Commission, the Member

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

ject to internal market logic? And how do Euratom rules gure in the equation? These questions have huge theoretical but also practical implications, and the Court of Justice took the riskier path: EU policy considerations, like environmental protection, have a role to play in the interpretation of State aid rules. Thus, when the Commission greenlighted the Hinkley Point project under its State aid powers, it should make sure that the compatibility assessment did not interfe-

States, and so on, that are the ones that should be challenged. However, by embracing this line of reasoning the Court was admitting that there are spaces immune to judicial review, particularly informal or intergovernmental fora, wherein the Union and its Member States can act under no judicial scrutiny. The ruling in Chrysostomides, together with the rst round of litigation in the Sharpston case, prove this point quite bluntly and brutally, shedding serious doubts on whet-

Hinkley Point paves the way to a more sectoral-oriented State aid policy

re with EU environmental rules. In fact, the Court came to this conclusion in broader terms than the ones used by the General Court in rst instance, thus paving the way to a more holistic analysis in State aid policy. Of course, this is the case when other areas of policy have a specic status under the Treaties, and that is certainly the case of environmental policy (see in particular Articles 3 and 11 TFEU, as well as Article 37 of the Charter). It is open to question whether the same result would apply in other areas of EU policy, but Hinkley Point paves the way to a more sectoral-oriented State aid policy in case the Commission decides to drive in that direction.

her the Union has a genuinely ‘complete’ system of remedies. The fact that the outcome sits in sharp contrast with the ruling in Bank Refah shows that 2020 was a year in which some steps forward were also followed by a worrying step back.

Austria v Commission (C-594/18 P) (Hinkley Point) The judgment in the Hinkley Point case raised a fundamental question: can the EU’s policy goals, such as environmental protection, have an impact in the interpretation of State aid rules, or should these rules be only sub-

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

Apple (T-892/16) and Ireland (T-778/16) v Commission This is historic litigation in the making, so it certainly deserves a place in the podium of 2020’s major rulings, even if the judgment is now awaiting an appeal in the Court of Justice. The General Court’s judgment in Apple and Ireland v Commission is a tremendous development, whatever may happen at the Union’s high court in the course of the following years. The General Court proved to be fully armed to address what seemed to be a mere technical development in the Commission’s State aid toolbox: transfer-pricing adjustments by national tax authorities. But the underlying issues under this highly complex area of tax policy were too obvious to hide. How far can the Commission go in using its State aid competence to review Member State direct tax policy? And how much leeway are Union courts willing to grant the Commission in the process? The General Court’s ruling shows how the judges struggled with the issue and how they tried to reach a reasonable and fair outcome. However, the ruling also shows the paradoxes in contemporary State aid law, some of them promoted by the Union court’s case law too. Highly sophisticated categories of State aid law have become too deformed to prove t for practice (selectivity, for example), whilst the duty to state reasons by EU Institutions is also becoming a convenient scapegoat to elude more substantive analyses. The General Court’s judgment in the Apple and Ireland v Commission case proves that judges have the courage to stop the Commission from expanding its jurisdiction into terrains that were too suspiciously expansive to accept, no matter how highprole the case may be, or how popular the initiative is with public opinion. However, the question as to how to effectively restrain the Commission in a legally convincing way is the million-dollar question that is still missing.

The General Court’s judgment in the Apple and Ireland v Commission case proves that judges have the courage to stop the Commission from expanding its jurisdiction into terrains that were too suspiciously expansive

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

267 TFEU if they are deemed to be systemically affected by a lack of judicial independence? In the end, the Court of Justice decided to play it safe, await the Commission’s further enforcement proposals and keep up communication with the Polish judiciary. The stakes are very high, indeed.

L & P (C-354/20 PPU, C-412/20 PPU) (Polish judicial independence and EAW) Expectations were high, but the climax was more like an anti-climax. The Advocate General already anticipated that the outcome may not be the one expected by many ruleof-law watchers of the Court of Justice’s case law. When a Dutch court made an urgent preliminary reference questioning its ability to enforce a European Arrest Warrant issued by a Polish court, it referred to the LM case law, but it also highlighted the fact that after several major rulings of the Court of Justice on the Polish reforms of the judiciary, this case law remained unenforced in Poland. The situation had deteriorated severely, Polish judges were being suspended, salaries reduced, disciplinary actions were rampant, and the Court of Justice’s rulings were simply being ignored. So should a national court from another Member State carry on enforcing European Arrest Warrants coming from Poland? The answer of the Court in the L & P case was ‘yes’, following its LM precedent, which basically requires Article 7 TEU proceedings to be successfully instigated prior to cutting off criminal judicial cooperation with Polish courts. Of course, the situation is difcult to handle in a black or white approach and the Court is very well aware of that. What is the use of severing all ties with Polish courts at this time? Aren’t the Polish courts actually the victims of the current governmental plans to undermine judicial independence? Is the proper way forward to turn Poland into an island of impunity from a criminal cooperation perspective? And what happens with the ability of national courts to make preliminary references under Article

Simpson (Joined Cases C-542/18 RXII and C-543/18 RX-II) In a funny twist of destiny, the trickiest and most ambitious case of 2020 on judicial independence happened to deal with Union courts and in a staff case. In Simpson, the Court of Justice delivered a major ruling on how to tackle irregularities in the appointment process of a judge. In the case at hand, the judge was none other than a judge of the now extinct Civil Service Tribunal. There were no doubts as to the ability and competence of the judge irregularly appointed, but the Council disregarded the rules established in the selection procedure (originally envisioned to appoint one judge, but at a later stage unilaterally overruled to appoint two judges). The Court of Justice had to deal with the consequences of this convoluted selec-

In a funny twist of destiny, the trickiest and most ambitious case of 2020 on judicial independence happened to deal with Union courts and in a staff case

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

International were eagerly awaited, particution process and the outcome resulted in a larly after the Court of Justice’s aggressive major ruling that conrms the ability of Artistance on these matters in the past. Prior case cle 47 of the Charter to create new remedies law, such as Digital Rights, Tele2 or and to expand the ex ofcio powers of the Schrems, among others, was hailed as the Court, even in appeal procedures. Also, the world’s gold standard of privacy rights by daCourt relied on Strasbourg case law to set a ta protection lawyers, but also denounced by threshold on the severity of breaches in apsecurity experts as a practical nightmare and pointment procedures. The result of the a naïve exercise of wishful thinking. This tenSimpson case was very reasonable, taking insion was destined to reach the Court and it to account that the Council had appointed a certainly did in Quadrature du Net and Priperfectly suited candidate and followed the vacy International, where rankings of the prior selecthe threshold between prition process undertaken by vacy, data protection and the selection committee. public security was nally However, the way in which The threshold between addressed. The outcome, the ruling displays its reasoning has paved the privacy, data protection as always in these kinds of cases, is not a total win for ground to future review of and public security any of the camps, but a baEU and also national aplanced exercise that will pointment procedures was ﬁnally addressed leave lawyers scratching when the latter have a their heads for years to cosystemic impact. This me. However, some prinbroad approach seems to cipled issues were resolhave inspired the European ved, including the scope of Court of Human Rights EU law when Member States invoke public too, and the recent Grand Chamber ruling in security justications to restrict privacy and Ástráðsson v. Iceland is a telling example of data protection provisions, which is now a how Luxembourg case law can inspire domain in which EU law has the nal word. Strasbourg, and not the other way around. Although the winning camp is still to be Good proof that Simpson is not an ordinary fully resolved, so far there is a discrete but staff case. very relevant champion coming out of this complex barrage of litigation: the EU itself.

Quadrature du Net (Joined Cases C-511/18, C-512/18 and C-520/18) and Privacy International (C-623/17)

Commission v Hungary (C-66/18) (High Education Services)

Privacy and data issues have become geopolitically relevant and the EU is playing a major role in the global debate. Thus, the judgments in Quadrature du Net and Privacy

Lately Hungary has given the Court of Justice multiple occasions to rene the case law on infringement actions, but the case on the

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

ter), but the way in which the Court handled these Charter violations (with an autonomous nding of autonomous breaches of the Charter in the nal nding of the ruling) conrms that the Commission can act as a human rights watchdog, although, in this case, sadly too late in time to make the Court’s ruling effective.

Hungarian rules on higher education, which managed to de facto banish the European Central University from Budapest, is the most far-reaching of them all. In the landmark judgment in Commission v Hungary the Court of Justice opened the door to a new kind of infringement action, based on WTO breaches by a Member State. Hungary’s legislation on higher education establishments was deemed to be in breach of GATS obligations, but by challenging this violation through an infringement procedure and not awaiting the WTO’s standard dispute settlement mechanisms, the Court of Justice created a new remedy of trade enforcement that could revolutionise trade disputes within the EU. Also, the combination of fundamental rights violations with WTO violations made the Court’s nal ruling even more powerful. In line with other recent Hungarian infringements, the Court seemed willing to declare infringements based exclusively on Charter violations. Of course, such violations come together with other breaches of EU law (and thus in the scope of application of the Char-

Vueling (Joined cases C-370/17 and C-37/18) If you thought that the issues on primacy and res iudicata of national judgments were a done deal, think twice. The Vueling case is a signicant evolution, and an important rebuke of past case law, putting further pressure on national courts to better comply with EU law. The question in Vueling was straight forward: if a criminal conviction in a national court is based on an incorrect interpretation of EU law, can such a conviction extend its effects to other national procedures, for example in civil actions? In principle, with the Court’s case law on res iudicata of natio-

The Vueling case is a signiﬁcant evolution, and an important rebuke of past case law, putting further pressure on national courts to better comply with EU law

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

pute settlement body from making a referennal judgments, the answer would be yes. But ce on the grounds of Article 267 TFFEU, but the Court decided to go a step further and it lithis has usually happened in ve-judge mited the effects of such judgments on the chambers. However, in Banco Santander grounds of primacy. This is a highly relevant the decision to reject a reference from development, because to date it could be asSpain’s central tax administrative tribunal casumed that national res iudicata was very me from the Grand Chambroad, only subject to the ber itself, and overruling a exceptions in cases of EU exclusive competence (LucBanco de Santander is an previous position concerning a very similar Spachini, for example, in the caimportant message for nish tax authority (Gabalse of State aid policy). That frisa). Thus, the message conception is now supersepara-judicial bodies in seemed to be quite clear: ded and Vueling proves that the Member States: make the Court is not in the national res iudicata is sure you are a genuine mood to expand its jurisstrictly conned to the bare diction any further under minimum as required by lejurisdiction in your Article 267 TFEU, enough gal certainty, but not any Member State is enough. This approach further than that. National is not totally surprising. courts should take good noThe Court is under huge te of this. pressure in handling its docket within reasonable timelines, and preliminary references represent more than half of the cases lodged Banco de Santander (C-274/14) every year. The debate at the time is not about enlarging the Court’s Article 267 The question comes every now and then: has TFEU jurisdiction, but how to streamline it. the Court of Justice decided to pull the plug Banco de Santander is an important messaon its traditionally pragmatic and loose adge for para-judicial bodies in the Member missibility approach to dene a ‘jurisdicStates: make sure you are a genuine jurisdiction’ for the purposes of a preliminary refetion in your Member State. Otherwise your rence procedure? The issue appears every reference will be sent straight back home. now and then when the Court prevents a dis-

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

News Highlights Week 11 to 15 January 2021

Action against Council for unlawful appointment of a European Prosecutor published

EU High Representative calls for opposition activists to be released following crackdown in Hong Kong

Monday 11 January

READ MORE ON EU LAW LIVE

An annulment action against the Council of the European Union challenging the appointment of the Belgian European Prosecutor (Mr Van Den Berge) for the EU’s new Prosecutor’s Ofce (EPPO) through a Council Implementing Decision (2020/1117) was published (T647/20).

The EU’s High Representative called for the immediate release of 50 opposition activities who were arrested in Hong Kong, considering the arrests penalise political activity that should be entirely legitimate in any political system that respects basic democratic principles.

Animal rights organisation: legal proceedings against European Chemicals Agency published

EU Law Lecturer sought to work at European Institute of Public Affairs

Monday 11 January

READ MORE ON EU LAW LIVE

The European Institute of Public Affairs is looking for an EU Law Lecturer to work at its premises in Luxembourg, with a focus on the elds of constitutional law, fundamental freedoms, and judicial and law enforcement cooperation. The application deadline is 29 January 2021.

Two annulment actions brought by One Voice, a French animal rights organisation, before the General Court against the European Chemicals Agency (T-663/20 and T-664/20) were published. The actions concern the relationship between the Cosmetics Regulation and the REACH Regulation in the eld of animal rights.

EU biodiversity targets: public consultation launched by Commission Monday 11 January

READ MORE ON EU LAW LIVE

State aid: Commission approves Spanish support scheme for energyintensive companies

READ MORE ON EU LAW LIVE

Monday 11 January

In the context of the serious decline of biodiversity, the European Commission launched an online public consultation to provide it with feedback on the setting of legally binding EU biodiversity targets. The public consultation will remain open for feedback until 5 April 2021.

READ MORE ON EU LAW LIVE

The European Commission approved a Spanish scheme to partially compensate energy-intensive companies for costs relating to renewable energy production, highefciency cogeneration, and power generation.

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

ESAs Joint Board of Appeal dismisses Rights of UK nationals in Iceland, appeal brought by Scope Ratings Liechtenstein and Norway post-Brexit: GmbH in respect of breach of CRA Regu- ESA monitoring lation Tuesday 12 January READ MORE ON EU LAW LIVE Tuesday 12 January

READ MORE ON EU LAW LIVE

The Joint Board of Appeal of the European Supervisory Authorities published its unanimous decision to dismiss the appeal brought by the credit rating company Scope Ratings GmbH against the European Securities and Markets Authority in respect of the interpretation of the Credit Rating Agencies Regulation.

The EFTA Surveillance Authority announced that from 1 January 2021 it has been, and will be, responsible for checking that the rights of UK nationals are respected in Iceland, Liechtenstein and Norway (the EEA EFTA States) in the post-Brexit context.

ECB publishes Guide on supervisory ap- ECtHR: publication by tax authorities proach to consolidation in the banking of personal data of tax defaulters does sector not breach privacy rights Tuesday 12 January

READ MORE ON EU LAW LIVE

Tuesday 12 January

READ MORE ON EU LAW LIVE

The European Central Bank published its nal Guide on the supervisory approach to consolidation in the banking sector, clarifying the use of supervisory tools to facilitate sustainable consolidation projects.

The European Court of Human Rights found in L.B. v. Hungary that Hungarian tax authorities did not breach the right to respect for private and family life (Article 8 ECHR) by publishing a list of tax defaulters, including the applicant’s personal details, on its website.

Commission v Slovenia: Court of Justice rules Slovenia failed to fulﬁl obligations and clariﬁes functioning of the one-stage infringement procedure

ECHA Board of Appeal dismisses appeal concerning conduct of carcinogenicity study in mice despite existing one in rats

Wednesday 13 January

READ MORE ON EU LAW LIVE

The Court of Justice ruled in Commission v Slovenia (C628/18 and C-631/18) that Slovenia failed to full its obligations concerning transposition of MiFID II Directive 2014/65 and Delegated Directive 2017/593, and provided important clarications on several aspects of the so-called ‘one-stage infringement procedure’ under Article 260(3) TFEU.

READ MORE ON EU LAW LIVE

The Board of Appeal of the European Chemicals Agency dismissed an appeal brought by a defendant who was required to perform a carcinogenicity study in mice following the evaluation of an active substance (ammonium 2,3,3,3-tetrauoro-2- heptauoropropoxy propanoate), although it had already performed one in rats.

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

EPPO launches new website Wednesday 13 January

READ MORE ON EU LAW LIVE

The European Public Prosecutor’s Ofce, a new and independent EU body that has the competence to investigate, prosecute and bring to judgment crimes against the EU budget, launched its new website (eppo.europa.eu).

Court of Justice: EAWs not based on national arrest warrants or similar enforceable judicial decisions are invalid Wednesday 13 January

READ MORE ON EU LAW LIVE

AG Bobek’s Opinion on standing for different data protection authorities in GDPR disputes: Facebook case Wednesday 13 January

READ MORE ON EU LAW LIVE

Advocate General Bobek issued his Opinion on which Member State’s data protection authority may commence legal proceedings in situations where data protection rights under the GDPR (2016/679) are concerned (Facebook Ireland Limited, Facebook INC, Facebook Belgium BVBA v Gegevensbeschermingsautoriteit, C645/19).

Court of Justice: refugee status for Palestinian stateless person is not ipso facto when voluntarily leaving UNRWA’s area of assistance

The Court of Justice has delivered its judgment in MM (C-414/20 PPU), a request for an urgent preliminary ruling in a case where the European Arrest Warrant (EAW) issued for the defendant was called into question. The Court conrmed that for an EAW to be valid, it must be based on a ‘national arrest warrant’ or a judicial decision that produces equivalent legal effects.

Wednesday 13 January

Council: Further extension of temporary derogation from Rules of Procedure

Are insects safe to eat? European Food Safety Authority provides its scientiﬁc opinion for EU policymakers to decide

Thursday 14 January

READ MORE ON EU LAW LIVE

Ofcial publication was made of Council Decision 2021/26 further extending the temporary derogation from the Council’s Rules of Procedure in view of the travel difculties caused by the COVID-19 pandemic in the EU.

READ MORE ON EU LAW LIVE

The Court of Justice has delivered its judgment in Bundesrepublik Deutschland v XT (C-507/19), nding that under Article 12(1)(a) of the Qualication Directive (2011/95), a stateless person of Palestinian origin should not be qualied as ipso facto having a refugee status when he or she voluntarily travels from an area where UNRWA’s protection has not ceased, to another one where his personal security is at risk, and cannot receive UNRWA’s assistance, prior to his travel to an EU Member State.

READ MORE ON EU LAW LIVE

The Novel Food Regulation 2015/2283 that came into effect on 1 January 2018, covers edible insects (‘food consisting of, isolated from, or produced from animals or their parts’), which must however be reviewed before such products can be authorised to be placed on the market in the EU.

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

Court of Justice clariﬁes scope of right to participation in environmental public procedures under the Aarhus Convention Thursday 14 January

READ MORE ON EU LAW LIVE

The Court of Justice gave its judgment in Stichting Varkens in Nood and Others (C-826/18), a preliminary ruling concerning the interpretation of Articles 6 and 9(2) of the Aarhus Convention in light of Article 47 of the Charter.

Court of Justice clariﬁes scope and effects of self-cleaning clause under the Public Procurement Directive 2014/24 Thursday 14 January

READ MORE ON EU LAW LIVE

The Court of Justice rendered its judgment in the freedom of establishment case RTS infra and Aannemingsbedrijf Norré-Behaegel (C-387/19) clarifying, at the request of the Belgian Council of State, the meaning and the legal effects of Article 57(6) of the Public Procurement Directive 2014/24, as amended by Delegated Regulation 2015/2170.

Court of Justice rules that age-based distinctions in unaccompanied minors’ return decisions are contrary to EU law Thursday 14 January

READ MORE ON EU LAW LIVE

In its ruling in Staatssecretaris van Justitie en Veiligheid (C-441/19), the Court of Justice held that before issuing a return decision in respect of an unaccompanied minor, a Member State must verify that adequate reception facilities are available in the State of return, irrespective of age.

ECtHR’s Grand Chamber: inter-State application in Ukraine v. Russia (re Crimea) partly admissible Thursday 14 January

READ MORE ON EU LAW LIVE

The Grand Chamber of the European Court of Human Rights (ECtHR) declared the application in the interstate case Ukraine v. Russia (re Crimea) (application no. 20958/14) partly admissible. The decision will be followed by a judgment at a later date.

AG Bobek: National courts have discretion to grant relief where Directive has not been transposed correctly in case concerning EU labelling and language requirements Thursday 14 January

READ MORE ON EU LAW LIVE

Advocate General Bobek issued his Opinion in UH v An tAire Talmhaíochta Bia agus Mara, Éire agus an tArdAighne (C-64/20), examining whether national courts are precluded by EU law from granting relief where there is failure to transpose a Directive.

ECA Report: SRM policies for resolution planning still missing key elements Friday 15 January

READ MORE ON EU LAW LIVE

The European Court of Auditors (ECA) published a report in which it assesses resolution planning in the Single Resolution Mechanism (SRM). It provides information about the current state of preparedness of the SRM, specically addressing the SRB’s oversight of resolution plans for less signicant banks.

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

EU ﬁles WTO panel request against export restrictions by Indonesia on raw materials for stainless steel

Post-Brexit Note from Fundamental Rights Agency on migration law implications

Friday 15 January

READ MORE ON EU LAW LIVE

The European Commission requested the establishment of a panel at the World Trade Organization (WTO) seeking the elimination of export restrictions imposed by Indonesia on nickel ore and iron ore, nding that they illegally restrict access for EU steel producers to raw materials needed for stainless steel production.

READ MORE ON EU LAW LIVE

The Fundamental Rights Agency published a brief note on Thursday on migration law implications that arise now that the UK is no longer a Member State postBrexit, meaning British nationals now have the status of third country nationals. It highlights that specic arrangements are yet to come as the UK intends to bilaterally negotiate with individual Member States on asylum, family reunication and irregular migration matters.

AG Campos Sánchez-Bordona: companies operating under contract with insurer established in other Member States can be a branch under Brussels Recast Regulation READ MORE ON EU LAW LIVE Friday 15 January

Advocate General Campos Sánchez-Bordona delivered his Opinion in CNP (C-913/19), advising the Court to rule that, under Article 7(5) of the Brussels Recast Regulation (1215/2012), a commercial company operating under a contract with an insurer established in another Member State may be classied as a ‘branch, agency or other establishment’ of that undertaking, if it meets several cumulative conditions.

Insights, Analyses & Op-Eds The Missing Link in Article 102 TFEU: Deﬁning the Boundaries of Competition Law Enforcement By David Pérez de Lamo

READ MORE ON EU LAW LIVE

Op-Ed examining the Court of Justice’s overly broad interpretation of the causal link required to nd abusive conduct based on an undertaking’s dominant position under Article 102 TFEU.

EULAWLIVE stay alert keep smart

New Year, New Transparency Register? By Emilia Korkea-aho

READ MORE ON EU LAW LIVE

Op-Ed on the virtues and shortcomings of the recent agreement on a new joint (Commission, Council, and Parliament) transparency register, reached after almost four years of on-off negotiations. Emilia Korkea-aho explores the background of this development and assesses the uncertainty regarding the binding nature of the transparency register.

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

The European Commission’s role in the intergovernmental sphere of EMU: reﬂections on the CJEU’s case-law after Chrysostomides and Bourdouvali By Karl Croonenborghs

Under Article 258 TFEU the burden of proof rests with the Commission, which may not rely on any presumption By Małgorzata Cyndecka

READ MORE ON EU LAW LIVE

Analysis of the Court of Justice’s judgment in Commission v Italy (C-63/19), which reiterates that the Commission must provide sufcient evidence and may not rely on presumptions if it intends to demonstrate failure to full obligations under Article 258 TFEU.

No (more) surprises at the Bulgarian border (Case C-393/19)

The Exclusion of Palestinian Refugees from Refugee Status in EU Asylum Law

By David Krappitz

By Stefan Salomon

READ MORE ON EU LAW LIVE

Analysis of the Court of Justice’s judgment in OM (C-393/19), and how it signicantly strengthens bona de third parties by excluding their property from conscation in criminal proceedings, and also strengthens procedural rights of parties not involved in the proceedings.

READ MORE ON EU LAW LIVE

Analysis of the Court of Justice’s judgment on when to deny refugee status in Bundesrepublik Deutschland v XT (C-507/19), the relationship between refugee protection and the special protection regime for Palestinian refugees, in a ruling seen as a contribution more widely to international refugee law.

The Best Interests of the Child Should Always Come First By Silvia Bartolini

READ MORE ON EU LAW LIVE

Analysis of the Court of Justice’s judgment in TQ (C-441/19), which sheds light on the role of the best interests of unaccompanied minors in the return procedure, considering that the Court manages to materialise positive obligations on the Member States arising from the principle of the best interests of the child, thereby conrming the need to take children’s rights more seriously throughout the migration process.

Nº43 · JANUARY, 16 2021

weekend

edition stay alert keep smart

Library - Book Review

By Violeta Pina Montaner

Werner Haslehner, Katerina Pantazatou, Georg Koﬂer, and Alexander Rust (Eds.)

A Guide to the Anti-Tax Avoidance Directive

READ MORE ON EU LAW LIVE

Assessment that considers this book ‘an excellent guide for European and international tax practitioners in need of in-depth knowledge of the ATAD [Anti-Tax Avoidance Directive] world’.