Weekend Edition Nº47 by eulawlive

Nº47

FEBRUARY 13

2021

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JÖRG GERKRATH

THE REINTRODUCTION OF INTERNAL EU BORDER CONTROLS: A DISPROPORTIONATE, INEFFECTIVE AND ILLEGAL INSTRUMENT OF COMBATING THE PANDEMIC

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The Reintroduction of internal EU Border Controls: a disproportionate, ineﬀective and illegal instrument of combating the pandemic Jörg Gerkrath

Seehofer, who took this decision on behalf of Germany, may have invoked the European Union Border Code as the legal basis for his decision to reintroduce internal border controls in the Schengen area, but it must be questioned whether he has complied with the le er and spirit of this Regulation.

In March 2020, during the rst wave of the COVID19 (Coronavirus SARS-CoV-2) pandemic in Europe, several Member States, including the Federal Republic of Germany, saw t to resort to the reintroduction of border controls with some of their neighbours, including the Grand Duchy of Luxembourg. is reintroduction was then justi ed by the urgency and the need to contain the spread of the virus. So that there is no misunderstanding: these were exclusively identity checks and checks on documents authorising their holders to cross borders and not health checks to detect carriers of the virus.

An in-depth analysis of the provisions of this Borders Code (1) shows indeed that the unilateral decision taken by Minister Seehofer was taken arbitrarily (2) and does not stand the test of its validity under EU law (3)

is contribution aims to establish, using the example of the German-Luxembourg border controls, that the use of this extraordinary means does not stand the test of its eﬀectiveness, proportionality and even less of its legality. To the extent that the perpetrator was himself a victim of this extraordinary measure, he may be forgiven for the somewhat militant character of the following lines.

1. e legal framework for internal border controls: e EU Borders Code e European Union Borders Code, also known as the Schengen Borders Code (SBC), was adopted in 2016 (2). A consolidated version, dated 11 June 2019 and containing the amendments made to it, is available on the EU website.

e German Minister of the Interior, Mr Horst

1. Full Professor for Public and European Law at the University of Luxembourg. 2. Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ, L 77, 23 March 2016, pp. 1-52.

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such controls by a Member State is therefore possible, but subject to precise conditions and not le to its discretion.

is Regulation was adopted on the legal basis of Article 77(2)(b) and (e) of the Treaty on the Functioning of the EU (TFEU), which speci cally provides that ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures on (...) the checks to which persons crossing external borders are subject [and] the absence of any checks on persons, whatever their nationality, when crossing internal borders’. Since the principle is thus de ned as the absence of internal border controls, the SBC nevertheless allows some temporary derogations from this principle. Articles 25 and 28 SBC deserve particular a ention in this respect in the situation under review.

Article 28 provides for a speci c procedure in cases requiring immediate action. It therefore introduces a partially speci c regime for unforeseen or unforeseeable situations where ‘a serious threat to the public policy or internal security of a Member State requires immediate action to be taken’.

e principle is de ned as the absence of internal border controls

e two provisions are of a complementary nature, but diﬀer as regards the procedure for restoring controls. us, prior noti cation of the planned reintroduction to the other Member States and the Commission is required under Article 2(2) of Article 25, while under Article 28 the reintroduction and noti cation must be simultaneous. e maximum duration of controls and their extension is also diﬀerent, - six months under Article 25 SBC and two months for cases requiring immediate action.

Article 25 lays down the general framework for temporary reintroductions of border controls, provided that they are necessary to deal with foreseeable events which seriously threaten public policy or internal security.

In both cases, measures adopted unilaterally by national authorities must respect the principles of necessity and proportionality - particularly in terms of duration and territorial scope - and must be speci cally motivated.

e Court of Justice of the EU (the ‘Court’) has had occasion to state that 'Article 25 of the Schengen Borders Code allows, exceptionally and under certain conditions, a Member State to reintroduce temporarily border control at all or speci c parts of its internal borders where there is a serious threat to public policy or internal security in that Member State. Under Article 32 of the Code, where border control at internal borders is reintroduced, the relevant provisions of the code relating to external borders are to apply mutatis mutandis’. (3) e reintroduction of

Article 26 SBC lays down strict criteria for the temporary reintroduction of internal border controls. Admi edly, in accordance with Articles 25 or 28(1) of the SBC, the decision to resort to the temporary

3. Judgment of the Court of Justice of,19 March 2019, Préfet des Pyrénées-Orientales v Abdelaziz Arib, C-444/17, ECLI:EU:C:2019:220, point 49.

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Member States must assess the proportionality of the measure in relation to the threat

Article 27 sets out a number of clari cations on the procedure for the temporary reintroduction of border controls and in particular on the prior noti cation of this intention to the other Member States and the Commission. On the basis of the information contained in the noti cation, the Commission will then be in a position to examine in turn the necessity and proportionality of the planned reintroduction of internal border controls. If it considers that consultation on certain aspects of the noti cation is appropriate, it will issue an opinion to that eﬀect. ese rules apply mutatis mutandis to an immediate reintroduction of checks under the speci c procedure provided for in Article 28.

reintroduction of checks at one or more of its internal borders or on sections thereof, or to extend such reintroduction is a ma er for each Member State. However, it should only be taken as a ‘last resort’. Article 26 further speci es that the Member State, ‘shall assess the extent to which such reintroduction is likely to adequately remedy the threat to public policy or internal security’. Although this is not explicitly stated, it is understood that this assessment must precede the decision. Otherwise, Article 26 would not be able to ful l its ‘eﬀet utile’. On the other hand, it is clear that the use of the words ‘shall assess; means that the Member State must assess this, which is more explicit than in the French or German version of the SBC.

2. e Arbitrary Reintroduction of Controls by the German Government

Similarly, it is made obligatory for that Member State to ‘assess the proportionality of the measure in relation to that threat’. In carrying out this assessment, the Member State must take into account both the ‘likely impact of any threat to its public policy or internal security’ and the ‘likely impact of such a measure on the free movement of persons within the area without internal border control’.

e German Government’s website states very laconically that ‘internal border controls at the internal borders with Austria, Switzerland, France, Luxembourg and Denmark will be carried out by the federal police from 16 March 2020. Federal Interior Mi-

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in its entirety’ (6). Hopefully, the Legal Service of the BMI is aware of this state of aﬀairs, which is not entirely new.

nister Seehofer ordered this reintroduction of temporary border controls on the basis of the Schengen Border Code on 15 March 2020. e European Commission and the interior ministers of the European Union were informed of the order in a socalled noti cation le er’ (4).

e ministerial decision to re-establish border controls has not been published in the Federal Gaze e (Bundesanzeiger). However, since, during the temporary reintroduction of controls, the land border with the neighbouring countries concerned could only be crossed at certain border crossing points, these were published in the Federal Gaze e on 3 April 2020 (7). At that time, the Federal Police had pointed out that the border may only be crossed at designated and approved border crossing points.

Furthermore, a wri en reply from the Federal Ministry of the Interior (BMI) to a request from an individual states that: ‘ e EU-level order and noti cation of the temporary reintroduction of controls at Germany’s internal Schengen borders with Austria, Switzerland, France, Luxembourg and Denmark as well as with Italy and Spain took place on 16 March 2020 and 19 March 2020 respectively on the basis of Article 28 of Regulation (EU) 2016/399 ("Schengen Borders Code"). is is a regulation directly applicable in the individual Schengen states, i.e. also in Germany, and therefore also provides the necessary legal basis’ (5).

From 16 March to 15 May 2020 only nine of the 20 border crossings on the German-Luxembourg border were opened to traﬃc. is caused great inconvenience to the population of the Grande-Région, especially those living in neighbouring towns and villages.

It is to be welcomed that the BMI refers to the direct applicability of this regulation and the fact that the legal basis for the ministerial decision is indeed to be found in this text. However, it is regre able that no public communication has been made as to whether the criteria set out in Articles 26, 27 and 28 SBC have been met. It is therefore diﬃcult to know whether the mandatory assessments provided for in Article 26 SBC have indeed been carried out. ere can be no doubt that these are legal obligations. An EU regulation is not only ‘directly applicable’, but also shall have ‘general application’ and shall be ‘binding

e organisation of the controls had been entrusted to the Federal Police (Bundespolizei). Heavily armed police oﬃcers, mostly from other German federal states (Bundesländer) than the Greater Region, were deployed day and night at the crossing points that remained open. Border workers needed a certi cate from their employers to cross the border. A model of such a certi cate had been made available online by the Luxembourg Government on 16 March. Another model had been put online by the federal police.

4. Cf. h ps://www.bundesregierung.de/breg-de/themen/coronavirus/kontrollen-an-den-grenzen-1730742, translated from German by the author. 5. h ps://fragdenstaat.de/anfrage/grenzkontrollen-2/, translated from German by the author. 6. Article 288 TFEU. 7. Notice of Noti cation of Border Crossing Points under the Temporarily Re-introduced Internal Border Controls at the Land Borders with Denmark, Luxembourg, France, Switzerland and Austria, 24 March 2020, BAnz AT 03.04.2020 B1.

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Minister Seehofer, li le aware of the situation in the Greater Region, seemed to consider that the decision to proceed with the immediate reintroduction of controls at the EU’s internal borders is a sovereign decision of each Member State. is view cannot be shared.

In a press release of 17 April 2020, the Minister for Foreign and European Aﬀairs, Jean Asselborn, welcomed the opening of two new border crossing points with Germany, namely Remich and Bollendorf. is decision was made possible a er a meeting between Minister Asselborn and Hans-Georg Engelke, State Secretary at the Federal Ministry of the Interior, Construction and Home Aﬀairs (8).

Authorised by Article 28 SBC, such a decision is subject to compliance with the conditions set out in Articles 25 to 28 SBC. It is not the exercise of a sovereign competence, but the exercise of an exceptional right that the SBC recognises belongs to the Member States while laying down the principle of the absence of controls.

Initially, on 20 March, all but seven border crossings between Germany and Luxembourg were closed. It was only possible to cross borders at the following points: Echternach, Grevenmacher, Mesenich (A1), Wasserbillig, Wormeldange, Schengen (motorway and trunk road). Luxembourg then campaigned at various levels for the opening of additional border crossings. anks to intensive diplomatic contacts and cooperation with the Luxembourg customs authorities, an agreement was reached with the German Government that 50 Luxembourg customs officers were to support the German federal police. On Friday 20 March, the rst officers took up their duties, ensuring the opening of the Dasburg and Vianden crossing points. On 25 March, Minister Asselborn had also sent a le er to the Federal Minister of the Interior, Mr Seehofer on the difficult situation in the border area.

e creation of an area of freedom, security and justice (AFSJ) is one of the EU’s major objectives. According to Article 3(2) of the Treaty on European Union (TEU), the EU shall provide its citizens with ‘an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’.

8. h ps://gouvernement.lu/de/actualites/toutes_actualites/communiques/2020/04-avril/17-oeﬀnung-grenzen.html

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is is an area of shared competence between the EU and its Member States under Article 4 TFEU. With regard more speci cally to border controls, Article 77(1) TFEU, furthermore, assigns very explicitly to the EU the competence to develop a policy ‘to ensure the absence of any controls on persons, whatever their nationality, when crossing internal borders’.

3. Assessing the validity of the decision to reintroduce controls As will be shown below, there is li le agreement with the view expressed in doctrine that ‘from a legal point of view, temporary reintroductions based on the COVID-19 epidemic are hardly questionable’ (9).

Moreover, it follows from the terms of Article 2 TFEU that ‘where the Treaties confer on the Union a competence shared with the Member States in a speci c area, the Union and the Member States may legislate and adopt legally binding acts in that area. e Member States shall exercise their competence to the extent that the Union has not exercised its own. Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence’.

Quite the contrary!

e reintroduction of such controls must remain exceptional e SBC stresses the fact that, since the principle is the absence of internal border controls, the reintroduction of such controls must remain exceptional. In order to ensure this, it lists a number of conditions that must be met when a Member State is considering reintroducing controls. It is therefore essential that any reintroduction of checks should be exceptional, limited in time and justi ed by the duly demonstrated existence of a serious threat to public policy or internal security of that Member State.

erefore, Member States cannot claim to exercise sovereign power when reintroducing internal border controls. is is a competence that is only granted to them by virtue of and according to the precise rules of the SBC

Member States cannot claim to exercise sovereign power when reintroducing internal border controls

It is therefore very surprising to note that the European Commission, which has the primordial role of guardian of respect for EU law, has reacted to the decisions of several Member States to reintroduce controls with a very conciliatory Communication. is Communication, adopted on 16 March 2020 and entitled ‘Guidelines on border management measu-

9. See, however, Stefano Montaldo, ‘ e COVID-19 Emergency and the Reintroduction of Internal Border Controls in the Schengen Area: Never Let a Serious Crisis Go to Waste’, European Papers, 4 November 2020, p. 5.

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luate the acceptable duration of the checks (E.) and, lastly, to consider the advisability of bringing infringement proceedings against Member States which have not complied with those conditions (F.). e following check will be carried out as an example for the reintroduction of checks at the GermanLuxembourg border.

res to protect public health and ensure the availability of essential goods and services’, seems to validate a posteriori the closure of internal borders (10). It states rather trivially in point 18 that ‘Member States may reintroduce temporary border controls at internal borders if justi ed on grounds of public policy or internal security. In an extremely critical situation, a Member State may determine the need to reintroduce border controls in response to the risk posed by a communicable disease. Member States must notify the reintroduction of border controls in accordance with the Schengen Borders Code’. Does this mean that internal border controls, introduced in response to a health emergency, are to be considered legitimate, as some seem to consider? (11) I do not think so.

A. Assessing the necessity and proportionality of the reintroduction of controls

At no time does the Commission seem to have carried out any real review

At no time does the Commission seem to have carried out any real review of the necessary and justi ed character and therefore of the legality of the various national decisions to reintroduce border controls. In my opinion, it should have carried out a six-stage control to this end.

e preamble to the SBC rightly emphasises in paragraph 24 that ‘the necessity and proportionality of the measure to reintroduce internal border controls must be assessed in the light of the threat to public order or internal security which is at the root of the need to reintroduce such controls’.

It is therefore necessary to question both the necessity and the proportionality of the German ministerial decision of 15 March 2020. Admi edly, the Commission’s Communication of 16 March seems to re ect the view that the reintroduction of controls was justi ed in view of the risks emanating from the pandemic. However, it has no binding legal value. It only re ects the general position of this single institution and there is no indication that this position was taken a er a thorough examination of the legality of the national decisions.

It would have been advisable to assess individually the necessity and proportionality of those decisions (A.), to verify their adequacy (B.), to monitor compliance with the formal conditions (C.), to take account of the restrictions on the free movement of persons resulting from those measures (D.), to eva-

10. EU Commission, Guidelines on border management measures to protect public health and to ensure the availability of essential goods and services, OJ C 86 I, 16 March 2020, p. 1. See also Frédérique Berrod, L'Union européenne et la COVID-19 ou le réarmement des frontières, Europe, November 2020, pp. 4-9. 11. See Frédérique Berrod, op. cit, p. 5.

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sible that in a speci c case the impossibility for a person to cross the German-Luxembourg border could not be deemed disproportionately in that it constituted, for example, a disproportionate interference in the normal family life of family members residing on both sides of the border.

As for necessity ... e fact that the German decision of 15 March reintroduces controls at the German-Luxembourg border without doing the same at the German-Belgian and German-Dutch borders, even though the epidemiological data were similar in these two neighbouring countries, is somewhat perplexing. is diﬀerence in treatment was due to political dealings within the Union of Conservative Parties. e powerful Minister-President of North RhineWestphalia, Armin Laschet (CDU), had obtained this favour from Minister Seehofer (CSU) as a result of his political pressure.

B. e Adequacy of the Reintroduction of Controls With regard to national measures that constitute restrictions (obstacles) to the free movement of persons, when disputed in cases the Court of Justice has long applied a test of admissibility based on compliance with four criteria (12). Such obstacles must be non-discriminatory, justi ed by an overriding reason relating to the public interest, adequate and proportionate. While the SBC explicitly refers only to an assessment of necessity and proportionality, it seems very likely that the Court will not neglect the criterion of adequacy. It will thus verify whether the disputed measure was 'clean' or 'adequate' to achieve the desired objective.

is disparity is suﬃcient proof that the need for the controls was relative and that the justi cation linked to the risk of spreading the virus did not hold water, so to speak. As for proportionality ... In order to determine whether the proportionality test was met, it is necessary to examine whether there were no less restrictive measures that would have made it possible to achieve the objective pursued or at least the stated objective. It would certainly be possible to dispense with monitoring compliance with this criterion, since the need for such monitoring is clearly lacking. However, taken in isolation, the German decision can still be regarded as proportionate in principle, since the closure of the 'small' border crossing points and the reintroduction of controls had not prevented cross-border workers from moving. is does not mean, however, that it is not pos-

is raises the question of whether border controls by heavily armed federal police oﬃcers prevent the virus from spreading and thus contain the pandemic. e answer can only be negative. Having undergone these controls for two months, I can a est to the fact that no health tests were carried out during these controls. e police merely checked the identity documents and certi cates issued to frontier workers by their employers.

12. See in particular Judgment of the Court of Justice of 30 November 1995, Gebhard, Case C-55/94, ECLI:EU:C:1995:411, paragraph 37. ‘However, it follows from the case law of the Court that national measures liable to impede or render less a ractive the exercise of the fundamental freedoms guaranteed by the Treaty must satisfy four conditions: they must be applied in a non-discriminatory manner, they must be justi ed by overriding reasons relating to the public interest, they must be suitable for securing the a ainment of the objective which they pursue and they must not go beyond what is necessary to a ain that objective (see judgment of 31 March 1993, Kraus, C-19/92, ECR I-1975, paragraph 37). p. I-1663, paragraph 32)’.

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In any event, it could be argued that the duty of loyal cooperation between Member States and the institutions of the EU, which is incumbent on Member States under Article 4(3) TEU, applies in this ma er and should lead governments to give prior noti cation as early as possible to enable neighbouring countries to adapt to the situation.

e introduction of border controls has not prevented the virus from circulating. is was never the objective. It was more a means for public authorities to show the public that they were acting. It was pure political action. e exceptions allowed for border workers, of whom there were about 50,000, and freight transporters, also show that signi cant ows of people were still crossing the border every day.

Furthermore, it is questionable whether this noti cation, which is addressed only to the Commission and the other Member States, should not be published so that it can subsequently be used to assess compliance with the conditions laid down in the SFC for eﬀective judicial review within the meaning of Articles 19 TEU and 47 of the Charter of Fundamental Rights of the European Union. is is, a er all, a measure which places a signi cant restriction on the free movement of persons guaranteed by the Treaties and the Charter.

During the second wave of the pandemic, all German actors also ruled out any further recourse to border controls from the outset, which proved to be ineﬀective and unnecessary.

C. Formal requirements e formal requirements for a national decision to immediately reintroduce internal border controls are based on a combined reading of Articles 27 and 28 SBC. When a Member State immediately reintroduces checks at its internal borders, it must notify this fact ‘simultaneously to the other Member States and the Commission’. In addition, it must communicate the information referred to in Article 27(1), including the reasons justifying recourse to the special procedure of Article 28.

D. e restriction on the free movement of EU citizens According to paragraph 27 of the preamble of the SBC ‘in accordance with the case law of the Court of Justice of the European Union, any derogation from the fundamental principle of the free movement of persons must be interpreted restrictively and the concept of public policy presupposes the existence of a real, present and suﬃciently serious threat to aﬀect one of the fundamental interests of society’.

e noti cation may therefore ‘exceptionally’ be concomitant with the reintroduction of checks ‘where a serious threat to public policy or to the internal security of a Member State requires immediate action’ by that Member State. It should be stressed that, under the SBC, this possibility constitutes an exception to the Member State’s 'right' to reintroduce checks, which itself should only be exercised in exceptional cases. It follows that the justi cation required under Article 28 goes far beyond the justication required under Article 25.

It is easy to understand that the notion of public order can include that of public health. Other texts of EU law thus refer to the triptych of public order, public safety and public health. Despite the European Commission’s a empts at coordination, many EU governments, including the

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German Government, have decided on their own initiative to impose a massive ban on entry into their territory and to control their borders. All these measures represent serious infringements of EU citizens’ rights. ey interfere with the freedom of movement of workers under Article 45 TFEU, the freedom of movement of EU citizens under Article 21 TFEU and the prohibition of discrimination under Article 18 TFEU (13).

ese rules result in particular from the case law of the Court, which must also apply in the context of the SBC. It is more than doubtful whether the Court nds that the German decision of 15 March 2020 meets the conditions which the Court has formulated with regard to the possibility of restricting freedom of movement for the purposes of public policy. Will it be more exible where a State invokes a serious threat to public health? Can States invoke a greater margin of appreciation in this area?

According to the se led case law of the Court of Justice of the European Union, recourse to the concept of public policy presupposes in any event the existence of a real, present and suﬃciently serious threat to aﬀect one of the fundamental interests of society (recital 27 of the Borders Code). Article 29 of Directive 2004/38 on the free movement of citizens of the European Union codi es the rules applying to Member States when they want to take restrictive measures justi ed by threats to public policy, public security or public health (14).

Nothing is less certain.

E. e Duration of the Disputed Measures With regard to the immediate reintroduction of controls on the basis of Article 28 SBC, this provides for an initial period of no more than 10 days. However, paragraphs 3 and 4 allow extensions of up to two months in total. Where the Member State wishes to extend its decision, it must take account of any new elements.

13. See also Aude Bouveresse, La libre circulation des personnes à l'épreuve du COVID-19: extremis malis extrema remedia, RTDE 2020, pp. 509-530. 14. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158, 30.4.2004, p. 77-123.

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e Court of Justice can only rule in a case brought before it - and the Commission did not commence infringement proceedings

With regard to the controls at the GermanLuxembourg border, it can be noted that following numerous interventions with Minister Seehofer, the la er decided to li the controls on 15 May 2020. is was celebrated on the same day at a meeting of Foreign Ministers Asselborn and Maas at the Remich border bridge.

summary proceedings before the Court of Justice?

e total time allowed has therefore not been exceeded. e fact remains that the initial decision and the extensions adopted disregarded the le er and spirit of the SBC. It is therefore regre able that the European Commission did not take the opportunity to bring an action for failure to ful l obligations, thus allowing the Court of Justice to clarify the reading of Articles 25 to 28 of the SBC.

Contacted by email, the ministries of Justice and Foreign Aﬀairs of the Grand Duchy indicated that the Luxembourg Government did not itself wish to bring infringement proceedings against the neighbouring State. is was understandable. Diplomatic approaches were preferred. e author of these lines is nevertheless convinced that the Court of Justice would have been very sensitive to arguments based on the violation of the principles of necessity and the SBC rules. e restrictions on the free movement of persons resulting from the German decision were clearly not justi ed by the needs of public policy or public health. e measures imposed were therefore neither adequate, nor justi ed by an overriding reason of public interest, nor proportionate to the aim pursued.

F. Missed Opportunity to Bring an Action for Failure to Ful l Obligations Compliance by Member States with the conditions listed in Articles 25 to 28 SBC is subject to review by the Court of Justice. However, the Court will only be able to give a ruling if the ma er is referred to it. In the present case, such a referral should have come from the European Commission. As the Guardian of the Treaties, the Commission should have brought infringement proceedings against the Federal Republic of Germany.

e regre able inaction of the Commission chaired by Ursula von der Leyen risks tarnishing its image as the Guardian of the Treaties in the European Union. Having already refrained from bringing an action for failure to ful l obligations against Federal Germany following the German Constitutional Court (BVerfG) ruling of 5 May 2020 in which it openly sought con ict with the Court of Justice (15), the Commission must guard against appearing too timid to take action against the country of origin of its President.

e comparison of the German decision of 15 March 2020 with the strict criteria of the SBC raises very serious doubts, to say the least, as to its conformity with EU law. is could not escape the Commission’s legal experts nor the Luxembourg Government. So why has there not been an action for failure to ful l obligations accompanied, if necessary, by a request for interim measures by way of

15. omas Klein, ‘Ticking time bomb. A ruling by the German Constitutional Court raises existential questions for the European Union’, Luxemburger Wort, 17 June 2020, p. 16, including an interview with the present author.

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News Highlights Week 8 to 12 February 2021

EU terrorism-sanctions list renewed further to regular review

Closer trade and investment partnership between EU and India explored

Monday 8 February

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e EU terrorism-sanctions list was reviewed and maintained for a further six months, by way of now published Council Implementing Regulation 2021/138 and CFSP Decision 2021/142.

e rst EU-India High-Level Dialogue on Trade Investment was held on Friday, covering a broad range of issues with the aim of enhancing bilateral trade and investment relations.

Trainee positions available at the Court of Justice

Consultation launched for revision of EU rules on criminal penalties for environmental law breaches

Monday 8 February

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e Court of Justice issued a call for applications for its yearly traineeships taking place from September 2021 to February 2022.

Tuesday 9 February

Provisional agreement for new rules to strengthen EU emergency measures mechanism

European Ombudsman suggests European Centre for Disease Prevention and Control be open to greater public scrutiny

Tuesday 9 February

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e European Commission launched a public consultation to gather views from individuals and expert groups in order to inform an envisaged reform of EU rules on environmental crime.

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Tuesday 9 February

In negotiating strengthened rules under a Regulation to strengthen the EU civil protection mechanism, provisional agreement was reached by representatives of the EU colegislators.

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e European Ombudsman proposed improvements to the transparency, and functioning of ECDC pursuant to a sixmonth inquiry into its performance during the COVID-19 pandemic.

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Enforcement of EU labour law rules: European Labour Authority’s joint cross-border inspections

Frontex to establish public register of documents in context of resolved complaint before European Ombudsman

Tuesday 9 February

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e European Labour Authority reported itself ready to carry out joint cross-border inspections with EU countries as part of its mission to protect EU labour law rights of mobile workers.

e European Ombudsman accepted Frontex’s proposal to establish a public register in the context of a complaint that it was not complying with EU rules on public access to documents.

European Ombudsman agrees with Europol’s proposal to improve public register

EFTA Court: subjective intention of EEA national relevant when investigating marriage of convenience with third country national

Tuesday 9 February

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e European Ombudsman accepted Europol’s proposal to improve its public register, further to a complaint that it was not compliant with EU rules on public access to documents.

Tuesday 9 February

ECtHR: dismissal of Constitutional Court judge in Romania and lifetime veto to take judicial oﬃce did not breach human rights

AG Rantos: Member States may adopt identical or similar measures for expulsions of EU citizens and expulsions of third country nationals

Tuesday 9 February

Wednesday 10 February

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e EFTA Court found in Kerim v e Norwegian Government (E-1/20) that to determine the existence of a marriage of convenience between a third country national and an EEA national under Article 35 of the Citizens Directive, the subjective intention of the EEA national as well as the facts must be taken into account.

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e European Court of Human Rights ruled in Xhoxhaj v. Albania (application no. 15227/19) that the dismissal of a judge of the Albanian Constitutional Court through a ‘ve ing process’, and banning her from rejoining the judiciary, did not breach the European Convention on Human Rights.

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Advocate General Rantos in Ordre des barreaux ancophones (C-718/19), advised the Court of Justice that Articles 20 and 21 TFEU and the Citizens’ Directive do not preclude national law imposing similar or identical expulsion orders on EU citizens under the Directive to those for third country nationals under the Returns Directive.

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European Parliament publishes study on liability of online platforms

UK withdraws from EU civil judicial cooperation framework

Wednesday 10 February

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e European Parliament published a study on the liability of online platforms in relation to illegal or harmful content and products, reviewing the main legal and regulatory challenges, a empts to categorise online platforms under multiple criteria and suggesting policy options on liability challenges.

e United Kingdom gave noti cation to the Council of the EU that it considers that the Brussels Convention (and 1971 Protocol) and Rome Convention ceased to apply to the UK and Gibraltar on 1 January 2021, as a consequence of the end of the transition period set out by the EU-UK Withdrawal Agreement.

Court of Justice rejects appeal alleging errors in General Court’s assessment of Commission’s methodology for investigations into anti-dumping refunds

EU Credit Rating Agency registrations of Fitch Ratings: changes made by ESMA

Wednesday 10 February

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e credit rating agency registrations of Fitch France, Fitch Polska, Fitch Italia and Fitch Ratings España were withdrawn by the European Securities and Markets Authority, pursuant to oﬃcial noti cations that Fitch made to ESMA that the speci c registrations would be renounced.

e Court of Justice dismissed the appeal seeking to set aside a General Court ruling concerning refused anti-dumping refunds (T-113/15), in RFA International, LP v European Commission (C-56/19 P), based on ineﬀective, inadmissible or unfounded arguments relating to the assessment of the Commission’s investigations.

AG Pikamäe: entry bans issued against third country nationals on the basis of criminal conviction fall under the scope of the Returns Directive

General Court rejects appeal by former Italian MEPs challenging the European Parliament’s decisions lowering their pensions

Wednesday 10 February

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Advocate General Pikamäe advised in Westerwaldkreis (C-546/19) that entry bans issued with removal decisions against third country nationals on the basis of prior criminal conviction fall under the scope of the Returns Directive, and that it precludes the maintenance of such bans where the return decision has been revoked or the removal decision becomes de nitive.

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e General Court gave its ruling in joined cases Santini and Others v Parliament (T-345/19 et al.), several actions for annulment against decisions by the European Parliament adapting the calculation of retirement or survivor’s pension.

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Expulsion decisions do not cease to have legal eﬀect following voluntary departure of the concerned person, AG Rantos advises Wednesday 10 February

Commission accepts commitments by Aspen concerning excessive pricing of six cancer medicines Wednesday 10 February

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e European Commission accepted commitments offered by Aspen, a global pharmaceutical company, to reduce prices for six off-patent cancer medicines by 73%. Aspen has also commi ed to the continued supply of off-patent medicines for a ‘signi cant period’ of time.

Advocate General Rantos delivered his Opinion in Staatssecretaris van Justitie en Veiligheid (C-719/19), advising the Court of Justice that under Article 15(1) of the Citizens Directive (2004/38), when an EU citizen has been expelled from a Member State and has le within the voluntary departure period, the expulsion decision does not cease to have legal eﬀect.

Quali ed investors may bring actions for damages arising from inaccurate prospectus even if it wasn’t addressed to them: AG Richard de la Tour’s Opinion ursday 11 February

Gambling: EFTA Surveillance Authority announces new policy on treatment of complaints ursday 11 February

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e EFTA Surveillance Authority announced its decision to deprioritise the treatment of complaints in the area of gambling and gambling-related services, including online gambling, considering they may be handled more eﬃciently by national courts guided by EFTA and CJEU case law.

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Advocate General Richard de la Tour advised the Court of Justice to rule in Bankia (C-910/19) that under Articles 3(2) and 6 of Directive 2003/7, a quali ed investor may bring an action for damages arising from an inaccurate prospectus, even if it was addressed only to retail investors.

AG Pikamäe: determining serious and individual threat to a civilian’s life in con ict situations requires global assessment, not minimum number of casualties ursday 11 February

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Court of Justice’s ruling on free movement law and Belgian legislation on the recruitment of dock workers ursday 11 February

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e Court of Justice in Katoen Natie Bulk Terminals and General Services Antwerp and Middlegate Europe (joined cases C407/19 and C-471/19) ruled that special recruitment rules under Belgian legislation on dock work might be compatible with the freedoms of workers, establishment, and services under certain conditions.

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Advocate General Pikamäe delivered his Opinion in Bundesrepublik Deutschland (C-901/19), advising the Court to rule that under Directive 2011/95, a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed con ict’ requires a qualitative and quantitative global assessment of the facts of the armed conict itself.

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AG Richard de la Tour: EAWs and national decisions on which they are based must be issued by a court and be subject to judicial review ursday 11 February

Digital Services Act and Digital Markets Act Proposals: European Data Protection Supervisor’s Opinions ursday 11 February

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e European Data Protection Supervisor published two Opinions on the European Commission’s legislative proposals for a Digital Services Act and Digital Markets Act, pursuant to Articles 42(1) of Regulation 2018/1725 that requires the Commission to consult the EDPS.

Advocate General Richard de la Tour delivered his Opinion in Svishtov Regional Prosecutor’s Oﬃce (C-648/20 PPU) on the dual level of protection requirement for European Arrest Warrants (EAWs) under the Court of Justice’s case law in Bob-Dogi (C-241/15).

AG Saugmandsgaard Øe’s Opinion on the scope of the right to publiclyfunded health care for Union citizens under EU law ursday 11 February

Regulation establishing the Recovery and Resilience Facility adopted Friday 12 February

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Following its adoption by the European Parliament, the Council of the EU adopted a Regulation establishing the Recovery and Resilience Facility (RRF), a key piece of the EU’s post-pandemic recovery plan, which is expected to be published in the OJ on ursday 18 February and to enter into force the following day.

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Advocate General Saugmandsgaard Øe delivered his Opinion in A (Soins de santé publics) (C-535/19), advising the Court of Justice on whether the concept of sickness bene ts under Article 3(1)(a) of Regulation 883/2004 includes publicly-funded health care, and if so, whether Member States can refuse such bene t to economically inactive EU citizens.

Joint Statement of EU-UK representatives responding to Northern Ireland Protocol tensions

National Recovery and Resilience Plans: Commission publishes State aid guiding template on support to digitalisation of news media Friday 12 February

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Friday 12 February

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Co-chairs of the EU-UK Joint Commi ee set up by the Withdrawal Agreement, European Commission Vice-President Maroš Šefčovič and the UK Chancellor of the Duchy of Lancaster Michael Gove, released a short Joint Statement a er a meeting in London planned to address issues arising from application of the Northern Ireland Protocol last week.

In order to assist Member States in the preparation and implementation of their National Recovery and Resilience Plans (NRRP), the European Commission has published an additional State aid guiding template on support for the digitalisation of news media.

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EU rights for the enforcement of international trade rules: legal amendments and institutional declarations published Friday 12 February

Amendments to rules on third-country spot foreign exchange benchmarks published and applicable as of tomorrow Friday 12 February

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Regulation 2021/168 amending Regulation 2016/1011 was published, on the exemption of certain third-country spot foreign exchange benchmarks and the designation of replacements for certain benchmarks in cessation, and amending Regulation 648/2012.

Oﬃcial publication was made of Regulation 2021/167 amending Regulation 654/2014 concerning the exercise of the Union’s rights for the application and enforcement of international trade rules.

Commission publishes report on implementation agricultural promotion policy

Two more Comparative legal research notes published by Court of Justice Friday 12 February

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Friday 12 February

e Court of Justice published two more Research Notes (dra ed in 2017 and 2018): on the anonymity of parties on the publication of court decisions, and nationality requirements in amateur athletics competitions.

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e European Commission published a report on the implementation of measures under Regulation 1144/2014, on information provision and promotion measures concerning agricultural products implemented in the internal market and in third countries.

Insights, Analyses & Op-Eds e Brave New World of State Aid in Post-Brexit UK

Georgia v. Russia: Human Rights on the thin red line between war and peace

by Phedon Nicolaides

by Elisa Uria

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Op-Ed on the UK’s recently launched consultation on its future regime for State aid control, and remarks considering the EU’s system to be bureaucratic, in exible and prescriptive. e author explains that this description of the EU system is based on a misconception and underestimates the challenge of designing a system with predictable and enforceable rules that can provide legal certainty and address the needs of businesses.

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Op-Ed on the European Court of Human Rights’ Grand Chamber ruling Georgia v. Russia (application no. 38263/08), an inter-State case se ing a historic milestone, whereby major issues concerning the limits of the jurisdiction of the ECtHR are at stake.

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Governance Reform and Public Acceptance of Regulatory Decision Making: the case of EU Pesticides Authorisations

Publication of Wri en Observations in Advisory Opinion Cases by the EFTA Court: Does the transparency come at price?

by eresa Kuhn, Maria Weimer, David van der Duin, and Jonathan Zeitlin

by Michal Kianička

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Op-Ed examining the EFTA’s Court’s consideration of publication of wri en observations in advisory opinion cases to further increase transparency, se ing out the pros and cons, and practical aspects that would have to be se led.

Analysis of survey experiments on whether governance reforms aﬀect public acceptance of regulatory decisions, and if so how, by a team of researchers from the University of Amsterdam Centre for European Studies, examining public a itudes towards the reform of EU pesticides regulation.

e EDPB Adequacy referential for the Law Enforcement Directive: the quest for more clarity for personal data transfers in a law enforcement context continues by Laura Drechsler

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Op-Ed on the EDPB’s rst ever guidance on the Law Enforcement Directive – ‘Recommendations 01/2021 on the adequacy referential under the Law Enforcement Directive’. e authors deems this timely advice that clari es many issues, but as also leaving much doubt, such as on appropriate safeguards, whether the UK will achieve LED adequacy, and on governing potential access by US authorities to data held by UK law enforcement authorities to data transferred from the EU.

Library - Book Review Anastasia Iliopoulou Penot, Lamprini Xenou (Eds)

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La charte des droits fondamentaux, source de renouveau constitutionnel européen? Review of a book that ‘provides answers to existential and early questions that the dra ers of the Charter raised’ such as whether a new catalogue of fundamental rights, speci c to the EU legal order is necessary, how it ts in, the role of the Charter in the EU’s architecture, and more.