Weekend Edition Nº44 by eulawlive

Nº44

JANUARY 23

2021

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Carl Baudenbacher

THE SWISS GOVERNMENT’S FLAILING InstA PROJECT Anjum Shabbir

HOW ACTIVE CAN COMMISSIONERS BE IN NATIONAL POLITICS UNDER EU RULES?

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The Swiss Government’s Flailing InstA Project Carl Baudenbacher

onwards, Switzerland succeeded in concluding two packages of bilateral sectoral agreements with the EU. The seven agreements in the rst package include an agreement on the free movement of persons, an air transport agreement, an agreement on technical barriers to trade (‘mutual recognition agreement’) and a treaty on overland transport. The latter is important for the EU because it secures access to Italy. The second package focuses on Switzerland’s association with the Schengen and Dublin regimes. Another important component was the agreement on the taxation of savings income, which may have far-reaching implications on some of the major Swiss nancial institutions. With the exception of the air transport agreement, over which the Court of Justice has jurisdiction, the treaties are administered by joint committees. Decisions can, thus, only be taken unanimously. Notably, Switzerland lost the only major case under the Air Transport Agreement, the Zurich Airport case, before the Court of Justice.

Switzerland’s plan to enter into an institutional framework agreement with the EU to secure broad access for its industry to the internal market was on shaky ground from the outset. The conclusion of the EU-UK Christmas Eve Trade and Cooperation Agreement has made matters even more difcult. The Federal Council, Switzerland’s seven-member directorial government, has claimed since 2016 that Brexit would not change its European policy objectives. But now reality seems to be catching up. 1. The trauma of the 1992 EEA rejection To understand Switzerland’s situation in Europe, one has to look back to 1992. On 6 December of that year, the people and the cantons rejected the country’s accession to the multilateral Agreement on the European Economic Area (EEA). The Federal Council had made a gross error: six months before the referendum, it submitted an application to Brussels to join the EU. It was therefore easy for the opponents of any integration to claim that the vote was not about joining the EEA but about joining the EU. From 1999

1. Carl Baudenbacher is a member of Monckton Chambers and a Visiting Professor at the London School of Economics. From 2003 to 2017, he was the President of the EFTA Court.

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should accept the jurisdiction of the court of the other side, the Court of Justice. The duo at the head of the Federal Department of Foreign Affairs (FDFA) launched a campaign that, in the words of Princeton moral philosopher Harry G. Frankfurt, must be described as “[s]peech aimed at persuading without regard to truth”. The most grotesque of many false claims was, rst, that the Court of Justice could not ‘condemn’ Switzerland but would only issue an ‘advisory opinion’ and, second, that the EFTA Court was not a valid option because its judgments would only bind Switzerland but not the EU. It is hard to credit, but on this basis, Switzerland and the EU began negotiations on the conclusion of an institutional framework agreement in 2014.

The EU lost faith in the Swiss application

2. The Court of Justice-model When concluding these bilateral agreements, the Federal Council strung the EU along by pointing to its application for accession in 1992 and insisting that it was serious about this goal. However, the EU lost faith in the Swiss application and from 2008 onwards demanded the sectoral bilateral agreements be subjected to a monitoring and judicial mechanism. It proposed that Switzerland ‘dock’ with the EFTA Surveillance Authority (ESA) and the EFTA Court. In cases concerning Switzerland the country would have been able to nominate one member to each of these institutions. As usual, Berne played for time, but then a new Foreign Minister, Didier Burkhalter, took ofce and appointed a new State Secretary, Yves Rossier. From 2013 onwards, the direction of travel was - to the astonishment of those familiar with the matter - that Switzerland

3. The Ukraine model In the course of 2017, this construction collapsed in Swiss politics like a house of cards. Foreign Minister Burkhalter resigned, something that only happens once in a blue moon in Switzerland. State Secretary Rossier had already been dismissed earlier. Berne was once again at a loss. The European

This construction collapsed in Swiss politics like a house of cards

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dustries, big pharma) concurred. However, Commission then put the Ukraine model of the banks seem to be lukewarm. There is no dispute resolution on the table, which had services agreement between the EU and been devised for the four post-Soviet repuSwitzerland. Swiss banks and insurers have blics of Ukraine, Moldova, Georgia and forever been living rather well without a EuArmenia and which is also intended to be imropean passport and this would not change posed on the former colonies of European under the InstA. On the other hand, criticism powers in the southern Mediterranean. of the transfer of sovereignty that would coAccording to this mechanism, an ‘arbitrame with the Ukraine mechanism is growing. tion panel’ is set up to decide disputes which, Not only former members of the Federal however, must ask the Court of Justice for a Council and important active politicians, but binding decision not only when it comes to also a new grouping of major exporting comthe interpretation of EU law, but also when panies and a second nettreaty law with the same conwork of successful rms optent as EU law is at issue, that is, almost always. Since Swiss banks and insurers pose the InstA. the Commission could uni4. The impact of the EUlaterally take a case to its have forever been living UK Trade and Cooperaown Court of Justice at any tirather well without a tion Agreement (TCA) me, it would be SwitzerEuropean passport land’s watchdog. Upon reAfter the Federal Council commendation of the new accepted the Ukraine meForeign Minister, Ignazio chanism in spring 2018, the Commission alCassis, the Federal Council informally acso presented it to the UK government. Prime cepted the Ukraine mechanism in spring Minister Theresa May consented to it in July 2018. At the end of 2018, the EU declared 2018 and today the mechanism is part of the the negotiations over. EU-UK Withdrawal Agreement. Prime Minister Boris Johnson’s government, on the otThe Federal Council subsequently asked the her hand, successfully resisted the inclusion EU for ‘clarications’ in three substantive of the Ukraine mechanism in the TCA, desareas of the draft institutional framework pite its commitment to that effect in the Poliagreement (InstA) – regarding wage protectical Declaration accompanying the Withtion when working across the border, the redrawal Agreement. Disputes arising from levance of the EU Citizenship Directive and the TCA will be decided by a true arbitration the ban on State aid. The Ukraine mechatribunal. This puts the Federal Council in a nism was found to be, if not good, then at difcult position. The FDFA conducted a seleast acceptable. The umbrella organisation cond deceptive campaign from 2018, claiof Swiss industry, ‘economiesuisse’, urged ming that the Ukraine ‘arbitral tribunal’ for the signing of the treaty. The associations would have considerable powers of its own. representing export businesses with certiThis time, Berne admittedly had not only docation needs (mechanical and electrical engimestic critics against it, but also British neering industries, medical technology in-

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Switzerland has got itself into a foreign policy pickle

that with the Old Testament story of Esau, who traded his birth right for a dish of lentil stew.

ones, joined by EU law key scholars in EU and EFTA States. The EU’s chief Brexit negotiator, Michel Barnier, is quoted in The Guardian on 3 February 2020 with the statement that under the Ukraine mechanism, the Court of Justice “should be able to continue its role in full”.

Nevertheless, it looks as if the Federal Council, provided it gets a few cosmetic concessions from the EU on the three side issues mentioned, is determined to sign the InstA, and thus pass the hot potato on to parliament and, ultimately, to the people and the cantons in a obligatory referendum. In this way, the seven (or a majority of them) apparently believe they could save face vis-à-vis Brussels. This seems slightly naïve: for Brussels it is irrelevant which actors in Switzerland ultimately bring down the InstA. Nor can the EU be blamed for the muddled situation - except that it relied too much on the grandstanding of the FDFA. Under the latter’s leadership, Switzerland has got itself into a foreign policy pickle. Nevertheless, among good neighbours, the country should be able to nd a way out again. In any case, the policy of tricking people with deliberately misleading campaigns must stop.

In light of the TCA, Swiss supporters of InstA are trying to save the treaty with the assertion that Switzerland has broader access to the single market than post-Brexit Britain in the trade of goods due to the ‘mutual recognition agreement’. It is therefore ‘logical’, they say, that it must accept the Court of Justice. This is unconvincing. The Eastern European republics in question have very narrow access to the single market, and the EU had wanted the Ukraine mechanism to be enshrined in the TCA as well. There are plenty of incantations that in order to keep transaction costs low for certain export sectors, one must accept the loss of sovereignty that comes with the Ukraine mechanism. Swiss publicist Beat Kappeler has compared

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How active can Commissioners be in national politics under EU rules? Anjum Shabbir

summer (section 2), as highlighted by the ofcial complaints of the Good Lobby and GONG to the European Ombudsman and Commission, and the European Commission’s response which was published last week on Thursday 14 January 2021.

1. Introduction Harkening back to the amalgam of legal powers granted to the European Commission in the EU Treaties, it has some executive powers as a policymaker and manager of budgets; the power of initiative to propose legislation; a mandate to monitor and power to enforce EU law as the ‘Guardian of the Treaties’; and a (shared and limited) foreign affairs role to represent the EU in negotiations with non-EU countries or organisations. There is however no rule in the Treaties explicitly permitting or prohibiting its members from continuing to engage in politics, and in practice members of the Commission may be afliated - as politicians or supporters with a European political party (2) as well as a national political party.

This Long Read considers the arguments relating to the issues that arise and the lack of clarity in EU rules concerning how active Commissioners can be in national politics under EU rules according to the Treaties (section 3) and the Commission’s Code of Conduct (section 4). The lack of clarity is recognised by the European Ombudsman, because although it decided there were no grounds to open an inquiry, it informed the Commission that ‘well-founded’ and ‘legitimate concerns’ had been raised, and that there can be confusion in the public mind about the role and powers of EU institutions that could be ‘strengthened through clarity in this regard’ (3).

This comes to the fore as a result of the involvement of the European Commission President and a Vice-President Commissioner in Croatia’s national election campaign last 1. Assistant Editor at EU Law Live.

2. The role of which is set out in Article 10(4) TFEU: to ‘contribute to forming European political awareness and to expressing the will of citizens of the Union’. They have legal status and can receive funding from the EU (Regulation 2004/2003 and Regulation 1141/2014), but cannot participate in election campaigns like national political parties. Examples are the European People’s Party (EPP), the Party of European Socialists (PES), Alliance of Liberals and Democrats for Europe (ALDE), the European Conservatives and Reformists (ECR), the Identity and Democracy (ID) Party, the European Green Party (EGF), the Party of the European Left (EL), the European Democratic Party (EDP), European Free Alliance (EFA), and European Christian and Political Movement (ECPM). 3. European Ombudsman’s Letter to the European Commission concerning statements by its President and its Vice-President for Democracy and Demography in the run up to the Croatian elections, 14 July 2020.

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EU Commission President Jean-Claude Juncker had during his term made disparaging comments about Hungarian Party Fidesz (and also later that staying silent during his term while Brexit campaigners told “lies” before the UK's 2016 referendum was the biggest mistake he has made (6)). In spring 2020, Commissioner Olivér Várhelyi shared a tweet by the Italian party Fratelli d'Italia, though he later deleted it and posted another tweet that he did not have any "intention of getting involved in Italian politics nor to support any particular party".

2. Commissioners’ involvement in national elections On Friday 3 July 2020, the European Commission President Ursula von der Leyen, upon the request of the Croatian government cabinet that morning, recorded a video clip in front of an EU ag in a corridor of the Commission’s headquarters in Brussels (Berlaymont) saying: “Safe Croatia”. Those two words were the slogan of the Croatian Democratic Union (HDZ) Croatia’s ruling party at the time (which won the election). The video clip appeared in a promotional election campaign video, text having been added below the images of Ms von der Leyen to describe her as the European Commission President. The video was released on Twitter on Saturday 4 July (and is still available) - ahead of a parliamentary election that took place in Croatia on Sunday 5 July 2020. EU Vice-President Commissioner Dubravka Šuica (Democracy and Demography) also appeared in the video in front of an EU ag. Both are members of the European People’s Party (EPP) ‘family’ - and a series of other high prole EPP gures also appear in the video repeating the slogan (4).

3. Guidance in the Treaties on the conduct and political activity of the European Commission Drawing in particular on the wording of Article 17 TEU and Article 245 TFEU, the European Commission, among other tasks, must promote the ‘general interest of the EU’ and ‘represent it abroad in foreign affairs’. The Commission’s own website also states:

Commissioners must be independent and defend the interests of the EU as a whole

Similarly, in 2019 Commissioners Günther Oettinger and Věra Jourová featured in campaign videos in the Slovak presidential election campaign on behalf of their fellow Commissioner Maroš Šefčovič; (5) and former

4. Ireland's former prime minister Leo Varadkar, ex-European Council president Donald Tusk, German Defense Minister Annegret KrampKarrenbauer, Austrian Chancellor Sebastian Kurz, Latvian Prime Minister Krišjānis Kariņš, Manfred Weber, Arturs Karins, Bulgarian Prime Minister Boyko Borissov, Greek Prime Minister Kyriakos Mitsotakis, and Cypriot President Nicos Anastasiades. It is said to be customary for senior gures from the main political families in Europe to lend their rhetorical support during national election periods, and high-prole gures gather at regular political group summits to formulate policy and exchange views on national positions. 5. Peter Teffer, Sefcovic campaign videos feature fellow commissioners, euobserver, 1 March 2019. 6. Alastair MacDonald, Juncker regrets EU silence on Brexit campaign "lies", Reuters, 7 May 2019.

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Advocate General Hogan’s Opinion of 17 December 2020 in the pending case European Court of Auditors v Karel Pinxten (C130/19) may also provide some guidance, as it inter alia considers the standards of behaviour required of persons holding high ofce within the institutions of the European Union, including the matter of alleged breaches of the European Court of Auditors’ (ECA) Code of Conduct. Member of the ECA Mr Pinxten was accused of carrying out ‘activities incompatible with his Related case law can also be AG Hogan advises that duties’ under Article 245 mentioned here - in Com"those who accept high TFEU, such as ‘political acmission v Cresson (C432/04), decided in 2006, ofﬁce are under a special tivities in the context of his involvement with the Open the Court of Justice adjudiduty not to behave in a VLD party’, and for ‘engacated over the alleged manner which would ging in active political actibreach by a Member of the vity within a political party Commission of obligations undermine the very while he was in ofce at the arising from ofce under objectives of the institution ECA’. The AG has advised Article 245 TFEU, descrithe Court of Justice that the bing Members as ‘under an in which they serve requirement of independenobligation to conduct themce for ECA members in the selves in a manner which is Treaties - set out in similar (but not identical) beyond reproach’ (recognising of course terms for the Commission, means that the that the degree of gravity is relevant for legal ‘active party political activity’ in that partiproceedings to be commenced). Though the cular case is ‘totally inconsistent with memcase concerns nepotism rather than EU ofbership of the ECA’ (point 183), and also cials involved in national politics as is being points out generally that those ‘who accept considered here, the Advocate General (AG) high ofce are under a special duty not to had advised the Court that ‘there is a direct behave in a manner which would undermine connection between the conduct of a Comthe very objectives of the institution in missioner and the public image and the funcwhich they serve’ (point 205). (For the whotioning of the institution in which he holds ofle picture on the Pinxten case, read this ce] making the procedure under Article Insight by Dolores Utrilla.) 245 TFEU ‘constitutional in character’. ‘Though there is one Commissioner from each EU country, their job is to defend the interests of the EU as a whole – rather than national interests’ (7). There is also emphasis on the requirement for the Commission to act in ‘complete independence’ (Article 17(3) TEU), ‘integrity and discretion’, to refrain from activities incompatible with their duties, and avoid inuence from Member States in performing its tasks (Article 245 TFEU).

7. See the European Commission’s webpage on organisational structure, ‘Political Leadership’, accessed on 21 January 2021. A Communication from the President of the Commission on rules governing the composition of the Cabinets of the Members of the Commission and of the Spokesperson’s Service also expressly sets out a section on professional ethics which recalls that in ‘performing their duties, Cabinet staff must have solely the interests of the institution and of the Union in mind at all times’, 1 December 2019, p. 2.

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cially published in 2018 (with the consultation of the European Parliament). In line with the Treaties, the Code emphasises the Commission Members’ role to ‘devote themselves fully to the performance of their duties in the EU’s general interest’, that Members should be ‘completely independent’, and that they must behave with integrity and discretion (9).

Therefore, the Treaties may not expressly prohibit or permit the behaviour referred to above (section 2), but provide guidance that the Commission ought to project a unied EU image, speak with a unied EU voice, act independently of other actors and external inuence, and the principles that can be drawn from Commission v Cresson (and, if the Court of Justice agrees in its upcoming judgment with AG Hogan’s Opinion, Pinxten) emphasise that EU institutions ought to act in a manner compatible with its duties, and in a manner that is beyond reproach.

- Political participation allowed - but to a limited extent The Code of Conduct curbs political participation by Commission Members, but does not completely rule it out - allowing it to some extent in the form of ‘exceptions’. Where that line is to be drawn is not crystal clear: there was much criticism at the time the video was released, especially from MEPs, who saw it as interference in national elections, and considered that the President of

4. The Commission’s Code of Conduct Like the ECA and other EU institutions, the European Commission follows a Code of Conduct. This is set out in a Commission Decision (8), a revised version that was of-

8. Commission Decision of 31 January 2018 on a Code of Conduct for the Members of the European Commission, C(2018/700) nal. 9. A Working Methods document dated 1 December 2019, which the Commission President must produce under Article 17(6)(a) TEU, also crossrefers to the Code of Conduct and also requires that each Commission Cabinet has an ‘ethics and transparency contact point’ (see page 17).

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Commissioners must 'abstain from making public statements or interventions on behalf of any political party

the Commission is obliged to remain neutral under this Code of Conduct (10). Ofcial complaints were made by the Good Lobby and GONG to the European Ombudsman and the European Commission on 5 and 6 July 2020, highlighting that this constitutes maladministration in breach of Articles 9 and 10 of the Code of Conduct (11). Examining the rule in Article 9(3) in particular, it sets out that concerning ‘participation in national politics during the term of ofce’ Members ‘shall abstain from making public statements or interventions on behalf of any political party or organisation of the social partners of which they are members’. An exception is provided, allowing a public statement or intervention to be made under Article 9 of the Code, but it does not apply in this case: when Members are actually standing for election or participating in an election campaign - as long as the statement is consistent with the principle of collegiality and duty of condentiality.

- Expression of a ‘personal opinion’ However, the prohibition in Article 9(3) is expressed as being ‘without prejudice to the right of Members to express their personal opinions’. This was relied upon in a public relations context by the Commission spokesman when rst addressing the uproar to the video clip in July 2020. The spokesman argued that the video clip was meant as a contribution in the President’s personal capacity and that there had been errors: regrettably, the fact that this was a personal opinion “was not made clear in the nal version of the video when it was shown”, and there were technical mistakes, such as the failure to remove the backdrop of the Berlaymont, an EU institutional setting, and to remove the reference to Ms von der Leyen as the Commission’s President. The argument is that there was in fact no public statement or intervention made by a Member of the Commission on behalf of any political party, but rather a personal opinion expressed as a member of the EPP - but for technical errors. This initial position was repeated (this time also with respect to the Vice-President) in the European Commission’s letter to the Eu-

This was said to be a personal opinion expressed as a member of the EPP

10. European Parliament, ‘Major interpellation’: The President of the Commission’s interference in the Croatian elections – violation of the Code of Conduct for the Members of the Commission, 14 July 2020. 11. See the Good Lobby’s updates in its blog here, and Letter of 6 July 2020 with its complaint about maladministration to the European Ombudsman.

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support of a national political election campaign is not considered to be a breach of the current Code: it is yet to be seen just how active Commissioners can be in national election campaigns and where the line will be drawn. (14)

ropean Ombudsman on 14 January 2021: the President (and Vice-President) appeared in the video as ‘a politician in the context of her afliation to a political party’ (as an EPP member), and describing it as the result of ‘regrettable’ and ‘technical’ ‘errors’ (not a public statement as a Member of the Commission on behalf of the political party). (12)

This is dependent somewhat on the wider discussion of the (institutionally tense) ‘politicisation of the Commission’ (notably the Ombudsman had described the issue (see section 2) as a ‘political’ matter).

The Code of Conduct does not however provide any guidance or criteria as to what constitutes a ‘personal opinion’, and the Commission does agree in its response that ‘institutional activities as Members of the New Commission guidelines Commission and the partici- will clarify how its Members pation in a campaign need to can participate in national be separated from each other election campaigns as clearly as possible’. (13)

A well-known example of that tension is the stop-startstop uptake of the Spitzenkandidaten process. That process enables the European Parliament to propose (to the European Council) the leader of the European political party that has the greatest number of votes as the Commission President. This is also perceived as a move towards greater democratic legitimacy: and of which the European Council has been seen as reticent, formerly making the appointment in an intergovernmental context and ‘behind closed doors’ at summits. It has in fact only been successful once, in 2014, with the appointment of Mr Jean-Claude Juncker who was leader of the EPP (the process was not followed in 2019 - Mr Manfred Weber, as

5. New Guidelines for political involvement In the aftermath of the questions raised by the video clip, the Commission has recognised some of the problems discussed above around the lack of clear rules, and going forward has decided to draw up guidelines clarifying the ‘practical modalities’ for the participation of its Members in national election campaigns. Considering the above, the guidelines may reect its view that expressing a personal opinion as the member of a European political party in

12. The letter of 8 January 2021 (published on 14 January) from the European Commission is available on the European Ombudsman’s website: ‘Follow-up response from the European Commission to the European Ombudsman concerning statements by the Commission President and VicePresident for Democracy and Demography in the run up to the Croatian elections’. 13. Ibid. 14. Lili Bayer, Commission to revamp campaigning rules after von der Leyen video storm, Politico, 14 July 2021.

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the leader of the EPP that had the majority of votes, was not appointed as Commission President). It is worth mentioning at this juncture that former President Juncker was internally considered as being successful during his term precisely due to his political prowess formed by his long career of 40 years in national and European politics. Those political and consensus-building abilities meant (i) the Commission could act as a skilled negotiator and secure high-stakes deals - including by gaining the support and condence of Member States; (ii) strengthening it as an EU institution operating in an increasingly busy EU institutional landscape, as well its relationships with other EU institutions - in particular the European Parliament; (iii) to make it more independent when making difcult or unpopular policy decisions; (iv) to build inuence and momentum for the legislative proposals it proposes that must be agreed by the Council of the European Union and the European Parliament; and (iv) as a strategic facilitator modifying legislative proposals according to amendments from the European Parliament. Generally speaking, a move from a Commission that is of a technocratic nature to a more political one is therefore not necessarily to be ruled out as a negative development. (15)

The wider discussion is on the politicisation of the Commission, moving away from its technocratic nature Conclusion Although the Treaties are not specic on the subject, there are strong indicators to suggest that conduct of European Commissioners who openly endorse national election campaigns has no easy accomodation under the basic principles that apply to the Commission under the Treaties: as set out above, the Treaties require a completely independent, EU-compatible and unied EU image and voice to be presented, and this is supported by the reiteration of those essential principles in the Code of Conduct. The Code of Conduct reiterates the above, and eshes out in more detail that political participation of Commissioners is allowed to some extent, but is also lacking in specicity - for example on what constitutes a ‘personal opinion’, who can hold the President to account for violations of the Code if he or she is in fact the enforcer of it, and does not resolve the paradox between the need to act ‘completely’ independently and the possibility to express personal opinions.

15. For a history of Commission Presidents, the Commission’s evolution, its relationship with other EU institutions, and consideration of the Spitzenkandidaten process, see ‘Chronicle of an Election Foretold: The Longer-Term Trends leading to the “Spitzenkandidaten” procedure and the Election of Jean-Claude Juncker as European Commission President’, LSE ‘Europe in Question’ Discussion Paper Series, 2016.

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For the highest-ranking ofcials in an EU institution, that clarity is reasonable to expect, especially in a complex political scene where (i) the European parties are inherently connected to national political parties; (ii) there are overlaps (in members) with the European Parliament’s Political Groups; and (iii) as in practice there are political aspects of the Commission’s operations: the drawing up of EU policy, weekly College meetings where political issues are discussed. The Commission also has duties to present and explain signicant EU proposals and initiatives, or the duty to bring the EU closer to its citizens. The new guidelines that will be drawn up to clarify political participation are therefore

welcome: they may either (a) represent a shift towards a ‘politicisation’ of the Commission, (b) work further to ensure a Commission that can act completely independently - to protect the Commission’s role as Guardian of the Treaties, as a foreign affairs representative, and to generally promote the interests of the EU as a whole - or (c) nd a balanced approach. At the very least the guidelines could contribute to mapping out how the performance of the Commission’s various executive, legislative and enforcement tasks could be shielded so that its activities remain compatible with EU duties, and ‘independence’ can still be respected.

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News Highlights Week 18 to 22 January 2021

Court of Justice: ESA may intervene in proceedings without having to establish a particular interest Monday 18 January

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By Order in Commission v Austria (C-328/20), the Court of Justice conrmed that the EFTA Surveillance Authority may intervene in proceedings without having to establish a particular interest. This is the rst case where applications for leave to intervene in an infringement action were submitted pursuant to the third paragraph of Article 40 of the Statute of the Court of Justice since the 2012 reform.

Technical rules for entering data in the Schengen Information System in the ﬁeld of police and judicial cooperation in criminal matters Monday 18 January

Junior Legal Assistant sought for European Public Prosecutor’s Ofﬁce Monday 18 January

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The European Public Prosecutor’s Ofce published a vacancy for a Junior Legal Assistant at its ofces in Luxembourg, a role involving providing administrative and legal support to the Permanent Chambers and to the European Prosecutors.

Several actions brought before the Court of Justice against Mobility Package Monday 18 January

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Ofcial publication was made of Commission Implementing Decision 2021/31 laying down rules for the application of Regulation 2018/1862 on the establishment, operation and use of the Schengen Information System in the eld of police cooperation and judicial cooperation in criminal matters.

Member State actions against the Mobility Package I on road transport approved in July 2020 were published. The package, which regulates the economic and social aspects of the EU road transport sector, has drawn considerable opposition from some Member States, MEPs and EU transport associations.

AG Szpunar: Legal protection of databases under EU law applies when database producer is not adversely affected

ECtHR: penalising begging in blanket manner breaches human dignity and privacy rights

Tuesday 19 January

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Advocate General Szpunar issued his Opinion in SIA ‘CV-Online Latvia’ v SIA ‘Melons’ (C-762/19) last week on Thursday, nding that under Directive 96/9 the contents of a database can be extracted and reused (such as by an internet content aggregator) if that does not ‘adversely affect’ the database producer.

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The European Court of Human Rights held in Lăcătuş v. Switzerland (application no. 14065/15) that Swiss authorities breached the right to respect for private and family life in Article 8 ECHR by ordering the applicant to pay a ne of more than 400 euros for begging in public in Geneva, and for detaining her for ve days for failure to pay the ne.

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ECA publishes review on EU’s initial response to COVID-19 Tuesday 19 January

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The European Court of Auditors published a review in which it analyses the EU’s initial response to COVID19. It is not an audit report, and therefore no conclusions or recommendations have been made.

Commission adopts Communication on key actions to beat the COVID-19 pandemic Wednesday 20 January

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Losing refugee status: Court of Justice rules that ‘State protection’ does not include social of ﬁnancial support from family or clan Wednesday 20 January

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The Court of Justice ruled that under EU law refugee status cannot be revoked on the grounds that social and nancial support is provided by family or clan members, as State protection is what is relevant when deciding if there is no longer a well-founded fear of persecution.

AG Hogan: third States may have legal standing in actions for annulment of restrictive measures adopted against them

The European Commission adopted a Communication on ‘A united front to beat COVID-19’, in which it calls on Member States to speed up the vaccination process and continue to apply other measures to contain the spread of the third wave of COVID-19.

Wednesday 20 January

Court of Justice dismisses appeal by Commission and orders it to pay default interest pursuant to Article 266 TFEU

Commission adopts Communication on fostering openness, strength and resilience of the EU’s economic and ﬁnancial system

Wednesday 20 January

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The Court of Justice delivered its judgment in Commission v Printeos (C-301/19 P), an appeal brought by the Commission against a General Court judgment ordering it to pay default interest to Printeos SA following the annulment of a decision imposing it a ne, which was paid on a provisional basis.

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In his Opinion in Venezuela v Council (C-872/19 P), Advocate General Hogan proposed that the General Court erred in law by holding that an action for annulment brought by the Bolivarian Republic of Venezuela was inadmissible for lack of standing, in a case challenging the validity of restrictive measures adopted by the Council of the EU in Regulation 2017/2063.

Wednesday 20 January

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The European Commission adopted a Communication on fostering openness, strength and resilience of the European economic and nancial system. It presents a new Strategy to ‘better enable Europe to play a leading role in global economic governance’ while protecting the EU from ‘unfair and abusive practices’.

Nº44 · JANUARY, 23 2021

weekend

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ECtHR: Grand Chamber judgment in Georgia v. Russia (II) Thursday 21 January

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The Grand Chamber of the European Court of Human Rights handed down its ruling in the inter-state case Georgia v. Russia (II), concerning the armed conict which broke out between Georgia and the Russian Federation in August 2008 and its consequences, declaring Russia committed several human rights breaches.

Announcement regarding the EUDenmark Agreement on the service of judicial and extrajudicial documents in civil or commercial matters Thursday 21 January

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Announcement was made of the decision by Denmark to implement the contents of Regulation 2020/1784 of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.

AG Pitruzzella advises the Court to dismiss all appeals concerning the Spanish treatment of ﬁnancial goodwill as State aid Thursday 21 January

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Advocate General Pitruzzella in Joined Cases (C-51/19 P and C-64/19 P) advised the Court of Justice to dismiss all appeals (relating to a series of them) made by Spanish companies against General Court judgments that conrmed that Spain’s tax treatment of nancial goodwill amounted to illegal State aid.

Court of Justice: disclosure of a document by a third party does not in itself satisfy the right to access to documents hold by the EU institutions Thursday 21 January

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In Leino-Sandberg v Parliament (C-761/18 P), the Court of Justice has claried the scope of the right of access to documents of the EU institutions in cases where a version of the document has been published online by a third party, the main document being part of proceedings pending before EU courts.

ESA launches infringement proceedings against Iceland for restrictions in the taxi services market Thursday 21 January

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The EFTA Surveillance Authority recently launched infringement proceedings against Iceland alleging it restricted the freedom of establishment in the taxi sector, contrary to Article 31(1) of the EEA. This follows from an investigation initiated by ESA in January 2017.

Commission ﬁnes PC gaming platform and publishers 7.8 million euros for ‘geo-blocking’ practices Thursday 21 January

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The European Commission ned Valve, the owner of online PC gaming platform ‘Steam’, as well as ve publishers (Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax) 7.8 million euros for breaching EU antitrust rules, nding that they restricted cross-border sales of certain PC video games on the basis of the geographical location of users.

Nº44 · JANUARY, 23 2021

weekend

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Court of Justice clariﬁes scope and legal effects of ECHA’s powers in procedures for registration of chemical substances Thursday 21 January

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In Germany v Esso Rafnage (C-471/18 P), the Court of Justice dismissed the appeal on the scope of the powers of the European Chemicals Agency within procedures for registration of chemical substances and the legal effects of ECHA’s letters addressed to national authorities in that area.

ECtHR: Ukraine committed large-scale human rights breaches during Maidan protests Thursday 21 January

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The European Court of Human Rights rendered ve Chamber judgments concerning the 2013-2014 Maidan protests in Ukraine, ruling that the events surrounding the protests involved multiple violations of several rights protected by the European Convention on Human Rights.

AG Pikamäe advises Court of Justice to EFTA Court: consultation on the possidismiss European Federation of Public ble publication of Written Observations Service Unions appeal against the Euro- in Advisory Opinion Cases pean Commission READ MORE ON EU LAW LIVE Thursday 21 January Thursday 21 January

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Advocate General Pikamäe advised the Court of Justice in EPSU v European Commission (C-928/19 P), to dismiss the appeal brought by the European Federation of Public Service Unions – the rst case in which the Court considers the powers and obligations of the Commission in the procedure for implementing agreements concluded by management and labour under Article 155(2) TFEU.

Julia Laffranque appointed as member of Article 255 TFEU panel Friday 22 January

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Today, ofcial publication has been made of Council Decision 2021/47 appointing Ms Julia Laffranque, former judge at the European Court of Human Rights (ECtHR), Supreme Court of Estonia, EU law professor and Estonian jurist, as a member of the panel provided for in Article 255 TFEU.

In order to increase transparency in judicial dialogue with national courts in the EFTA States, the EFTA Court is considering publishing written observations received in Advisory Opinion cases on its website, and has launched an open consultation on this possibility (for cases registered at the Court as of 1 January 2021).

Council Recommendation on strengthening the use of rapid antigen tests and on the mutual recognition of COVID-19 test results Friday 22 January

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Yesterday, the Member States unanimously agreed (by written procedure) on a Council Recommendation setting out a common framework for the use of rapid antigen tests and the mutual recognition of COVID-19 test results across the EU.

Nº44 · JANUARY, 23 2021

weekend

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AG Campos Sánchez-Bordona: Opinion on renewal of limited gambling concessions Friday 22 January

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Advocate General Campos Sánchez Bordona delivered his Opinion in Sisal Stanleybet (joined cases C-721/19 and C-722/19) yesterday, advising the Court of Justice on questions posed by the Italian Council of State concerning the compatibility with the freedoms of services and of establishment of a national system providing for renewal of a concession without the launch of a new tendering procedure.

Trainee positions at the EFTA Surveillance Authority Friday 22 January

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Five trainee positions are now open for young professionals at the EFTA Surveillance Authority, in Competition & State Aid, Internal Market Affairs and Legal and Executive Affairs Departments.

Deep Fakes, Robot Surgery and Autonomous Weapons: European Parliament calls for rules on use of AI for military and public sector purposes Friday 22 January

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A report by the European Parliament calling for an EU legal framework on the use of Articial Intelligence in respect of its potential military use, public sector use, and which strongly focuses on human-decision making and contact, was adopted by MEPs this week on Wednesday.

Insights, Analyses & Op-Eds Commission v Slovenia (C-628/18) – Evolution of the ‘one-stage infringement procedure’ By Albrecht Wendenburg

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An Op-Ed analysing the Court of Justice’s ‘one-stage infringement procedure’, a new type of procedure that signicantly increases the pressure on Member States to transpose directives on time. He highlights how it is different to the ‘two-stage procedure’, examines how it has operated under CJEU case Commission v Slovenia, and provides recommendations to Member States taking that analysis into account

Whiteland (C-308/19): More on how effectiveness limits national rules for enforcement of EU Competition Law (NCA limitation periods) By Miguel Sousa Ferro

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Op-Ed on the specic and broader implications of competition law case Whiteland (C-308/19) concerning an infringement of Article 101 TFEU, described as an unsurprising judgment on the principles of effectiveness and sincere cooperation, and questioning the lack of consideration paid to the principle of effectiveness of the laws in question.

Nº44 · JANUARY, 23 2021

weekend

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When does a third country have standing to challenge an EU act in EU courts? The Opinion of AG Hogan in Venezuela v Council By Luigi Lonardo

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Op-Ed on AG Hogan’s advice to the Court of Justice that Venezuela is a legal person that can have standing to bring legal proceedings under the fourth paragraph of Article 263 TFEU, in his Opinion for Venezuela v Council (C-872/19 P). The Op-Ed considers the role of the EU in international relations, the far reaching consequences this would have on the EU’s external position, and how it may sit uncomfortably with the nding in Rosneft.

The Court of Justice Provides Guidance on the Duration of Bid-Rigging Cartels in Kilpailu- ja kuluttajavirasto (C450/19) By David Pérez de Lamo

The Court of Justice in MM: a valid EAW must be based on a coercive decision By Anna Mosna

Analysis of the recent judgment of the Court of Justice MM (C-414/20 PPU), which with a combined reading of CJEU case Bob-Dogi, is understood to mean that the coercive nature of the underlying national judicial decision in European Arrest Warrant proceedings must be considered by the executing judicial authority, and where it does not exist, the executing authority must refuse to give effect to an EAW which does not satisfy the requirements of lawfulness laid down in Article 8(1) of the EAW Framework Decision.

Court of Justice clariﬁes scope and effects of self-cleaning under Directive 2014/24 By Piotr Bogdanowicz

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Analysis of public procurement case RTS infra and Aannemingsbedrijf Norré-Behaegel (C-387/19), considered as deserving particular attention as to its ndings about the principle of transparency and the direct effect of Article 57(6) of Directive 2014/24 in the context of whether the economic operator must act on its own initiative in order to demonstrate that it had adopted selfcleaning measures.

Analysis of the Court of Justice’s competition law case Kilpailu- ja kuluttajavirasto (C-450/19) which held in a cartel bid-rigging case that the duration of the infringement must be assessed by reference to the period during which the offending undertakings engaged in the prohibited conduct or implemented the bid-rigging cartel.

The restrictive interpretation of the exceptions to the right of access to environmental information under Directive 2003/4 and its limits (C-619/19)

Extraterritorial jurisdiction in Ukraine v. Russia (re Crimea) By Andrés Delgado

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Analysis of the Grand Chamber of the European Court of Human Rights’ Decision declaring the inter-state case Ukraine v. Russia (re Crimea) (application no. 20958/14) partly admissible, noteworthy for considering the question of sovereignty over Crimea and the extraterritorial scope of the ECtHR jurisdiction.

By Theodoros G. Iliopoulos

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Analysis of the Court’s grammatical, teleological and systematic interpretation of the judgment in Land Baden-Württemberg (C-619/19), seen as an eloquent judicial analysis of certain concepts of Directive 2003/4/EC and attempted delimitation of the restrictive interpretation of the exceptions.

Nº44 · JANUARY, 23 2021

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Commission v Printeos (C-301/19 P): A statement of EU law on the interest owed by the Commission when a ﬁning decision is annulled By Jokin Beltrán de Lubiano

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Analysis of a ‘full statement of the law’ regarding the interest owed by the European Commission when the Court of Justice of the European Union annuls the latter’s decision to impose a ne, in the latest installment of the Printeos saga (C-301/19 P).

Library - Book Review Alicja Sikora

By Daniel Sarmiento

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Constitutionalisation of Environmental Protection in EU Law This book is described as ‘a tour de force through one of the most complex and legally sensitive topics currently on display in EU law’, ‘giving meaning to a complex, convoluted and not always coherent set of rules, to the point that constitutionalisation seems, at times, like the only way forward for the European environmental policy’.