Weekend Edition Nº57 by eulawlive

Nº57

MAY 8

2021

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CHIARA AMALFITANO AND GIACOMO DI FEDERICO

THE IMAGINARY LAWYERS: THE CASE OF THE UNBR BOTA AVOCATI (FINALLY) BEFORE THE EU COURTS

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The Imaginary Lawyers: the case of the UNBR Bota avocati (ﬁnally) before the EU Courts Chiara Amalﬁtano and Giacomo Di Federico

ged failure to act; and that the applicant had not appointed a lawyer as prescribed by Article 19 of the Statute of the CJEU (3).

1. Preliminary remarks and factual background of a surreal string of orders Between April 2018 and November 2020, the EU Courts issued six orders relating to specious proceedings brought by two individuals acting in their capacity as avocat registered in Romania with the Association UNBR Bota (2).

Unsurprisingly, on appeal the Court of Justice upheld the conclusion reached by the General Court (Be ani, C-392/18 P); but Mr Be ani, this time represented by Mrs Brovelli Blaso a, another UNBR Bota avocat, relentlessly continued his legal ba le by asking the Luxembourg judges to interpret the Order. e Court of Justice quickly dismissed the request based on Article 43 of the Statute because the UNBR Bota Association is not among the recognised bodies pursuant to domestic law, as con rmed by a judgment of the Romanian Supreme Court of Cassation. Mrs Brovelli Blaso a, therefore, did not meet (at least one of) the requirements prescribed in Article 19 Statute, as interpreted by the Court. at provision, in fact, stipulates that for a person to be validly permi ed to represent private parties before the EU Courts he or she must be authorised to practice before a court of an EU or EEA country, and the Court of Justice has consistently

Mr Be ani challenged the Commission’s decision rejecting his complaint that Directive 98/5 on the establishment of lawyers had been breached by the Italian authorities and claimed compensation for damages. e General Court dismissed the action against the Commission’s decision based on Article 263 and Article 268 TFEU (Be ani, T-80/18). It found that the Commission enjoys a wide margin of discretion in deciding whether to have recourse to Article 258 TFEU; that the choice to start an infringement procedure is not directed at, nor does it concern, individuals, who are therefore prevented from initiating proceedings against the Commission’s alle-

1. Chiara Amal tano is Professor of EU Law at the University of Milan. Giacomo Di Federico is Professor of EU Law at the University of Bologna. 2. e orders are available in Italian and French only. e hyperlinks included herein refer to the French version. 3. Article 19 of the Statute is applicable to the General Court via Article 53(1) of the Statute. e need to be represented by a lawyer in direct actions is also proclaimed in Article 51 of the Rules of Procedure of the General Court, as well as in Article 119 of the Rules of Procedure of the Court of Justice. On these Articles see Elisa Gambaro, in Chiara Amal tano, Massimo Condinanzi, Paolo Iannuccelli (eds), Le regole del processo dinanzi al giudice dell’Unione europea. Commento articolo per articolo, (Naples, Editoriale Scienti ca, 2017), respectively 84 ff, 1064 ff and 693 ff. For representation in preliminary ruling proceedings before the Court of Justice see also Article 97 (3) RP ECJ (cf. infra, n. 36).

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hough admi edly grotesque, this string of orders is particularly important, and in many respects capable of providing solutions, for the Italian context, which has long been struggling with circular movements of nationals going abroad to avoid the national bar exam and then returning to practice as lawMeanwhile, Mr Vizzone, represented by Mr Be ani, yers at home. In addition, this ddly aﬀair highlights brought an action for annulment against, inter alia, some information asymmetries when it comes to tithe Commission’s decision interpreting and apmely discovery and swi removal of abusive conplying the Order issued by the Court of Justice in duct, especially when the la er inBe ani. e action was declared terferes with the proper adminisinadmissible by the General is ddly aﬀair tration of justice in the Member Court on account of the fact that, States as well as with the adminisjust like Mrs Brovelli Blaso a, highlights some trative and judicial activity of the Mr Be ani cannot be quali ed information EU Courts. as a lawyer within the meaning of Article 19 of the Statute (Vizzoasymmetries when ne, T-658/19) (4). at conclu2. e illness it comes to timely sion was con rmed on appeal by the Court of Justice (Vizzone, CFor those who are not familiar discovery and swi 191/20 P). with the Italian legal order, the held that in order to qualify as a lawyer the interested person must be a member of the bar in an EU or EEA Country (Be ani, C-392/18 P-INT, paras 1112 and cited case law).

removal of abusive conduct

conditions for access to the legal profession can be summarised as follows: possession of a law degree (for a period of ve years), completion of a period of practice as a trainee lawyer (18 months) or, in the alternative, a endance of a postgraduate course (12 months), and an internship at a law rm (six months); passing of the bar exam (held at a local level), consisting of three wri en tests and an interview on six topics selected by the applicant, including deontological rules (6). e lack of comprehensive oﬃcial national data on the success rate

is is, in a nutshell, the relevant procedural background. Notoriously, however, the devil is in the detail, and there are two details in these cases that are particularly noteworthy: rst, Mr Be ani and Mrs Brovelli Blaso a had already been removed from the register of established lawyers/disbarred when they acted before the EU courts; second, Mr Be ani submi ed his wri en application to the Registrar of the General Court, but appealed via the e-Curia system (5). As will be seen, these are pivotal elements in understanding the actual nature and reach of the cases. Indeed, alt-

4. Concomitantly – believe it or not – an application for interim measures was led, but the lack of clarity and precision in the arguments put forward in the wri en submission led the President to opt for rejection: see Case T-658/19 R Vizzone. 5. While the use of e-Curia is optional when acting before the Court of Justice, it has been compulsory before the General Court since 2018: see Article 56a(1) of General Court’s Rules of Procedure. Besides the ‘standard’ procedure, the user guide contemplates a special procedure, ‘which is intended for urgent situations and enables an account to be opened provisionally in order for procedural documents to be lodged with the General Court only’ (e-Curia user guide). 6. Cf. Royal Decree 1578/1933, See now, Law 247/2012, Article 36. e modalities of the exam have been reviewed and adjusted to the ongoing emergency related to COVID-19 (Law Decree No 31/2021).

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ousands of Italian law graduates ed to the Iberian Peninsula to obtain the formal quali cation under the more favourable conditions laid down in Spanish law

makes it impossible to oﬀer a precise gure, but it appears safe to say that despite signi cant diﬀerences across the country, in the last 20 years, on average, less than 50% pass the exam. is is hardly traceable to the selectiveness of the procedure, which is by and large considered (not only by candidates) to be excessively aleatory (7). To avoid the strictness of the northern districts in the selection process, eets of candidates moved their residence to the south and registered as trainee lawyers in the local bar associations, where pass rates were frequently in excess of 90% (8). When this system was reformed in 2003, and the wri en tests were corrected elsewhere through a mechanism that combines two local bar associations by drawing lots (9), many Italian citizens with a law degree and who were eager to become lawyers sought alternative routes.

Taking advantage of the regulatory disparities between Member States, and the opportunities offered by EC law, most notably Directive 2005/36 on the recognition of professional quali cations and Directive 98/5, thousands of Italian law graduates ed to the Iberian Peninsula to obtain the formal quali cation under the more favourable conditions laid down in Spanish law, according to which the only title required in order to qualify as a lawyer was the law degree. e process followed by many such graduates was as follows: Step 1: apply for recognition of the national quali cation to the Ministry of Education (Ministerio de Educación, Cultura y Deporte) pursuant to Directive 89/48 (now Directive 2005/36). An ad hoc commission would de ne the university exams necessary to that effect in light of the substantial differen-

e cure: rst generation abogados

7. In this sense, people who pass the wri en tests o en retake them the following year while waiting to sit for the interview, and they o en fail the second time around. 8. is was particularly so when exams were entirely assessed at the local level (i.e., both the wri en tests and the interview). But even now that the wri en exams are corrected elsewhere, it appears that the phenomenon still exists. 9. Cf. Royal Decree No 37/1934 and Law 180/2003.

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ces between the respective legal orders (for example, constitutional law, labour law, criminal law, international private law, civil law). Step 2: take the aptitude test (so-called pruebas de conjunto) wherever preferred, according to the means set out at the local level by the single universities (10). Step 3: register in the local bar council as abogado ejercente upon presentation of the title of licenciado en derecho and payment of a fee (renewed on an annual basis). Step 4: return to Italy, ask for registration in a special register of established lawyers set up in accordance with Directive 98/5 (Article 3(2)) and practice under the title of the Member State of origin (Article 4(1)), with the obligation to work in conjunction with a member of the bar when representing or defending a client in legal proceedings (Article 5(3)). Step 5: practise law eﬀectively and regularly for three years under the professional title of abogado, with strong limitations on the performance of judicial activity, and apply to be admi ed to practice under the title of the host Member State, as provided for in Directive 98/5 to facilitate establishment (Article 10(3)). Full circle. e magnitude of this circular phenomenon between Italy and Spain rapidly raised serious concerns within the community of lawyers resulting in a number of countermeasures, some of which were also targeted by the Commission, but never became the subject of an infringement procedure (11). A language test in Spanish (in the presence of an interpreter), a compensation measure on Italian law, the proof of one year of professional activity exercised in Spain, and the payment of a lump-sum were just some of the expedients implemented to restrict access to the bar. e National Bar Association (CNF) acting in its judicial capacity, largely con rmed the refusals to register the applicants.

10. On average, Italian students were required to prepare around ten subjects, but while some were required to answer open questions, for others – especially, but not exclusively, in the southern and more remote Spanish regions – it was suﬃcient to pass a multiple-choice test. 11. Cf. P-6732/2011 and P-002260/2011. ey did however lead the AGCM to impose symbolic nes on a number of local bar associations involved in restrictive practices considered to be incompatible with Article 101 TFEU (AGCM, I745).

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e Court of Justice in Torresi claimed that the ‘Spanish solution’ does not in itself represent an abuse of law

e ‘Spanish solution’ became less a ractive from 31 October 2011, when, a few months before the above mentioned Supreme Court decision, a radical reform of the rules on access to the legal profession essentially brought the selection process in line with that prescribed at the Italian level: compulsory completion of a dedicated MA Programme (Master en Abogacia y Practica Juridica) covering legal theory and practice; a bar exam comprising multiplechoice questions on a wide range of general and speci c topics (13). Encouraged by aggressive advertising campaigns promoted by the commercial education industry, including online publicity, as well as in print and broadcast media (14), hordes of Italian graduates in law took their chances and continued to apply even a er that date, counting on ‘ exible’ Spanish local councils to register them so they could rapidly return home and invoke the Supreme Court’s decision.

On 22 December 2011, the Italian Court of Cassation (Corte di Cassazione) (in Judgment No 28340/2011) put an end to these restrictive conditions by aﬃrming, in line with the ndings of the Court of Justice in Wilson (C-506/2004, paragraph 66), the inadmissibility of any additional requirement – such as professional experience – with respect to the presentation of the certi cate a esting his or her registration with the competent authorities in the Member State of origin. e question as to whether the use by Italian citizens of Directive 98/5 to bypass domestic rules on access to the legal profession, instead, was addressed by the Court of Justice in Torresi, where it claimed that the ‘Spanish solution’ does not in itself represent an abuse of law. It did not, however, clarify the actual margin of manoeuvre enjoyed by the local bar councils to prevent abuses (12). We shall come back to this aspect shortly herea er.

Meanwhile, the quest for easier ways to practice the profession at home – while avoiding the muchfeared bar exam – continued with an additional abusive twist. A er the Spanish reform, a ‘Romanian solution’ emerged, with an increasing number of Italians holding a law degree travelling to Bucharest to acquire the title of avocat, with the UNBR Bota Association. Investigative reporting suggested that the test for admission to the bar comprised multiplechoice questions on Romanian law… in Italian (!) (15). In a note of 25 September 2013 the CNF expressly invited the local bar councils to acquire further information on the Italian avocati demanding to

4. In case of non-recovery, experimental therapies: second generation abogados and avocati - UNBR Bota

12. See further Giacomo Di Federico, ‘Joined Cases 58 and 59/13, C-58/13 and C-59/13 Angelo Alberto Torresi and Pierfrances-co Torresi v Consiglio dell’Ordine degli Avvocati di Macerata, Judgment of the Court (Grand Chamber) of 17 July 2014, not yet reported’, European Public Law 21, no. 3 (2015), 481 ff at 500. 13. Cf. Law No 34/2006, Royal Decree 775/2011 and Royal Decree 150/2014. 14. Unsurprisingly, soon a er the affirmation of the ‘Spanish solution’ a complete mapping of the most cost-effective solutions was soon available to Italian citizens holding a law degree. Advertisements on the internet, and in the media generally, contributed to boost this trend, with a number of rms operating on the education market offering courses, logistic assistance and administrative support to individuals. 15. e whole package, including a one-night-stay in a comfortable hotel, can be purchased for around 7,000 euros. See in particular here.

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ted, by way of a decree, 332 applications to be enrobe enrolled in the register of established lawyers and to refuse registration, and where appropriate cancel, lled in the register of established lawyers as abogado those pertaining to the UNBR Bota Association. and invited the local bar associations to remove thoAccording to information exchanged on the IMI se who had already been erroneously admi ed. system (16), that Association was not competent to Although it cannot be affirmed with absolute cerissue the title of avocat pursuant to Romanian law. tainty that all illegitimate situations have been remoNot all local bar associations followed these indicaved, this avenue seems to have reached a dead end. tions, at least not immediately. is partly explains why the mentioned note of the CNF determined More recently, in the constant search for alternative the cancellation of established avocati and the disbaroutes to acquire their long-craved title of avvocato, rring individuals who – a er UNBR Bota avocati elaborated a three years of effective and regucunning plan: apply for registrais triangular solution lar practice – had already been retion with a bar association of anotgistered as local lawyers. Most is currently being used her Member State and then, with notably, in October 2016 Mr the professional title of that by a number of Member country, apply to be registered in Be ani was removed from the register of established lawyers Italy. Unaware of the abusive natuStates and must be whilst Mrs Brovelli Blaso a, re of the system set up by the monitored closely who had already acquired the titUNBR Bota Association, other le of avvocato, was disbarred (17). Member States might enable reto prevent abuse gistrations, assuming the legitie cancellation and the disbarmate origin of the title; and rement – which preceded the acquests from professionals estations before the EU Courts – weblished in these countries to be registered in Italy are re later con rmed by the CNF (18) and on appeal by more likely to pass preliminary scrutiny on the part the Supreme Court of Cassation (19). of local bar associations. Besides, as acknowledged A similar fate awaited those who pursued the Spaby the EU Courts in Vizzone, the only way to distinnish solution a er the 31 of October 2011, and thoguish the UNBR Association from the official se who, having applied before that date, did not comUNBR Bucharest is the address; (21) and it took a plete the procedure within the following 24 months while before Italian authorities realised the abuse (by 30 October 2013) (20). In May 2017, on the bathemselves. is triangular solution is currently sis of an exchange of information occurring through being used and concerns, besides Spain, other EU the IMI system, the Italian Ministry of Justice rejeccountries like Belgium, France, Luxembourg and

16. Regulation 1024/2012 on administrative cooperation through the Internal Market Information System. e information available on the IMI since 2013 indicated that the only competent authority in Romania was the Uniunea Națională a Barourilor din Romania (U.N.B.R.) (Supreme Court of Cassation, judgement of 4 November 2016, No 22398). 17. Decision of the local bar association of Caltagirone (Sicily) of 27 October 2016. 18. Judgment of 27 July 2018, No 85. 19. Judgment of 7 February 2019, No 3706. See further here. 20. Cf. Royal Decree 5/2012 and Law 5/2012. 21. Cf. Case T-658/19, (n. 5), para 13 and Case C-191/20 P, (n. 6), paras 17-18.

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In addition, and perhaps more importantly, the saga of UNBR Bota avocati is not over, as there are an increasing number of incoming ‘triangled’ lawyers. is long wave has already triggered reactions which are potentially incompatible with Directive 98/5.

Portugal. ese recent developments, of course, must be monitored closely to prevent abuse.

5. e shocking diagnosis: medication ineffective, complications ahead is string of orders makes it clear that UNBR Bota avocati are not lawyers within the meaning of Article 19 Statute. From a broader perspective it proves that the EU Courts are o en embroiled in solving purely domestic affairs. e use of Article 263 TFEU to obtain an answer proved to be inefficient but capable of offering a solution. Game over, yes; but now what?

More speci cally, in order to see the contrast, some Italian local bar associations have started to require a ‘declaration of origin’ from the authorities of the Member State where the person was registered. is is intended to track down triangled lawyers and prevent them from being registered. In this regard, it cannot be forgo en that in his Opinion in Torresi ( Joined Cases 58 and 59/13, point 95), Advocate General Wahl openly admi ed the possibility on the part of the competent authorities of the host Member State to conduct further investigative measures and to refuse registration, albeit only in cases of fraudulent or illegal acquisition of the title abroad, and only in the presence of unequivocal evidence. e Court of Justice, in turn, limited itself to recalling the traditional case law on the prohibition of abuse of law, but nevertheless – albeit (admi edly) only indirectly – did con rm the possibility to adopt anti-abuse measures (Torresi, Joined Cases 58 and 59/13, paragraph 43). Although requiring a speci c statement concerning previous establishments with diﬀerent professional titles might be considered to contradict the rule aﬃrmed in Wilson, it does nevertheless seem to respond to the general principle of prohibition of abuse of law, appears adequate to a ain that objective and is not believed to go beyond what is necessary to prevent abusive conduct. And in the case of UNBR Bota avocati it can hardly be doubted that both the relevant subjective and objective elements recur (Torresi, paragraphs 45-46).

It should not go unnoticed that in the judgment relied upon by the Court of Justice to substantiate the conclusion that Mr Be ani and Mrs Brovelli Blaso a are not lawyers, the Romanian Cassation Court (Curte di Casație şi Justiție) also aﬃrmed that any judicial activity exercised under the title issued by UNBR Bota must be considered abusive and criminally sanctionable (22). As a result, UNBR Bota avocati, operating as established lawyers or avvocati, are also exposed to criminal proceedings in Italy (23), as well as to professional liability and compensation claims from their former clients. At the same time, some UNBR Bota avocati have started legal actions against the rms involved in the promotion and organisation of round trips to Bucharest. e same of course can be said for second generation abogados. At least in this respect, the ndings of the Court of Justice concerning the (lack of) professional quali cations of Mr Be ani and Mrs Brovelli Blaso a, therefore, can paradoxically be very helpful for the interested parties.

22. Înalta Curte de Casaţie şi Justiţie (Supreme Court of cassation and justice), judgment of 21 September 2015. Cf. Case C-392/18 P-INT, (n. 4), para 13 and Case C-191/20 P, (n. 6), para 19. 23. As a ma er of fact, Article 348 of the Italian criminal code also sanctions the abusive exercise of a regulated profession.

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of the Statute must be interpreted autonomously (Prezes Urzędu Komunikacji Elektronicznej, Joined cases C-422/11 P and C-423/11 P, paragraphs 34 and 35), but relies heavily on national law. Of course, with particular regard to the rst condition, the Court of Justice demands that ‘the person who signs the application must be a member of the Bar’, regardless of whether the person is entitled to represent his clients before the courts of one or more Member States (24). Accordingly, the fact that in September 2015 the Romanian Supreme Court of Cassation recognised that UNBR Bota does not belong to the National Bar Association, and that in February 2019 the Italian Supreme Court of Cassation had con rmed the cancellation of Mr Be ani and Mrs Brovelli Blaso a, determines their (lack of) standing before the EU Courts (25).

6. erapeutic obstinacy: no remedy but some positive side-eﬀects In light of the above, it should be clear(er) why, following a logic which closely resembles that of a hypochondriac, the applicants in these proceedings obsessively sought judicial con rmation of their fears: that they are not lawyers. e EU Courts leave no room for doubt on this ma er, at least with regard to Article 19 of the Statute. e actions brought by Mr Be ani and Mr Vizzone nonetheless also raise interesting procedural and organisational issues. How could Mr Be ani lodge an action and even open an e-Curia account a er the cancellation of his status? And what can be done to prevent such blatantly abusive practices from absorbing the Eu Courts in the future, or catching them oﬀ-guard, most notably in the case of triangled UNBR Bota avocati?

And yet, the request to open an e-Curia account submi ed by Mr Be ani was validated by the Registry of the Court. In his request for interpretation of the Court of Justice’s order (upholding the General Court’s nding of manifest inadmissibility), Mr Be ani asked whether the status of lawyer could be inferred, inter alia, by the fact that the appeal was introduced through the e-Curia system, access to which is reserved to quali ed lawyers. In this regard, it is important to underscore that the issuing of an eCuria account is based on a self-declaration that the applicant is a lawyer, not on the authenticity of a supporting document (for example, a recent le er or

To begin with, it is useful to recall that according to Article 19 of the Statute, as we have seen, two cumulative conditions must be satis ed for valid representation before the EU Courts: on the one hand, the person must be a quali ed lawyer in a Member State or in an EEA Country; and on the other hand, the person must be authorised to practice before a court of a Member State or of an EEA country. e concept of lawyer within the meaning of Article 19

24. Cf. Case C-805/18 P Saga Furs Oyj, para 5 and case C-22/17 P Neonart svetlobni in reklamni napisi Krevh, para 6. It is worth noting that a different, speci c regime applies to preliminary references, which also affects the representation of the parties. Article 97(3) of the Court of Justice’s Rules of Procedure in fact, includes an exception to the rules laid down in Article 19 Statute and foresees that: ‘[A]s regards the representation and a endance of the parties to the main proceedings, the Court shall take account of the rules of procedure in force before the court or tribunal which made the reference’ (emphasis added). See further Massimo Condinanzi, Article 97 RP ECJ, in Chiara Amal tano, Massimo Condinanzi, Paolo Iannuccelli (eds), (n. 2), 614 ff. In preliminary ruling proceedings, to open an e-Curia account and to submit statements or wri en observations, it is not necessary to be a lawyer ex Article 19 Statute, since the only requirement is to be authorised, under national procedural rules, to represent a party before the courts or tribunals of his or her own State: cf. Decision of the Court of Justice of 16 October 2018 on the lodging and service of procedural documents by means of e-Curia, Recital 4 and Conditions of Use of e-Curia of 1 December 2018, para 7. 25. Cfr. Order in Case C-392/18 P-INT, (n. 4) para 13, and Order in Case C-191/20 P, (n. 6).

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of the title lodged at the Registries of the General Court and the Court of Justice was nally discovered and demonstrates that malicious a empts to outdo the EU Courts are deemed to fail. Yet, it is somewhat frustrating that the saga of Bota avocati was unknown to the Registry and that so much time should be invested in preventing self-proclaimed lawyers from defending clients before the EU Courts.

certi cate from a Bar or Law Society con rming registration) uploaded on the dedicated platform (26). us, the nal admissibility of the action is always subject to the lodging at the Registry of the certi cate demonstrating that the representing lawyer is authorised to practise before a court of a Member State (or EEA country) (27). is begs the question of whether and how to guarantee a more eﬃcient and eﬀective control over the respect of Article 19 of the Statute without endangering the sound administration of justice. In the case of Be ani, Brovelli and Vizzone, the abusive nature

At the end of the day, the UNBR Bota solution trumped the Italian local bar associations, the bar councils of various other Member States in the case of

is begs the question of whether and how to guarantee a more eﬃcient and eﬀective control over the respect of Article 19 of the Statute without endangering the sound administration of justice

26. e-Curia User Guide, (n. 7), 4 27. Failure to comply with possible requests for regularisation by the Registrar (cf. Article 122 RP ECJ and Article 78 RP GC and also Practice rules for the implementation of the RP GC, Annex I, le er a) may lead the CJEU to declare the application manifestly inadmissible (cf. Article 126-129-130(6) RP GC and Article 181 RP ECJ for the appeal before the Court of Justice – see, respectively, D.P. Domenicucci, E. Moro, and C. Naomé in C. Amal tano, M. Condinanzi, P. Iannuccelli (eds), (n. 3), 1136 ﬀ and 888 ﬀ).

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relation to registration and disciplinary measures (Articles 3(2) and 7(2)) albeit suitable to uncover abuses, presuppose that the signalling authority is in fact the competent authority, which is true for the local Spanish bar councils in the case of second generation abogados, but obviously not for the Association UNBR Bota. In these instances, as with the case of triangled avocati, reliance on IMI coordinators, could prove to be more eﬀective. Given the crossborder dimension of the phenomenon, the involvement of the Council of Bars and Law Societies of Europe (CCBE) would also be advisable. ese minor adjustments would be er equip the EU Courts in detecting abusive conduct and ultimately avoid misrepresentation (29).

triangled situations and the Registry of the Court of Justice alike (28). In order to shelter the EU Courts from such specious proceedings, and facilitate the discovery of similar cases in the future, information concerning abusive conduct in the legal profession should reach the EU Courts and be easily accessible to the Registry. In this regard, a direct communication channel between, on the one side, the (oﬃcial) competent bar associations operating in the Member States and EEA countries and, on the other side, the Registries of the General Court and the Court of Justice (via contacts or digital repositories) would undoubtedly be helpful. Still, the speci c communication duties imposed on bar associations/councils contemplated by Directive 98/5 in

28. Recently the Romanian Constitutional Court upheld the constitutionality of the domestic law on access to the profession con rming that UNBR Bota is not part of the oﬃcial UNBR Association (judgment of 17 September 2019, No 502). In addition, it appears that UNBR Bota avocati (not necessarily Italian) have indeed been found guilty of the crime of abusive exercise of the profession pursuant to Article 348 of the criminal code. See, for instance, Judecatoria Galati, order of 22 January 2018, No 82. 29. With regard to preliminary reference proceedings, it is worth noting that Article 97(3) of the Court of Justice’s Rules of Procedure seems to oﬀer the Court (through the Registry) a useful tool to avoid abuse by establishing that ‘[I]n the event of any doubt as to whether a person may under national law represent a party to the main proceedings, the Court may obtain information om the referring court or tribunal on the rules of procedure applicable’ (emphasis added). at being said, it will be conceived that the national judge might have erroneously admi ed an action brought by someone not entitled to submit observations before the Court of Justice. However, should for any reason the Court come to question the standing of the interested person, the issue could and should be solved through a further dialogue with the referring court or tribunal.

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News Highlights Week 3 to 7 May 2021

SRB: new operational guidance on liquidity and funding in resolution of banks

Commission’s proposal for amendment of Council Recommendation on Covid-19 restrictions to non-essential travel to the EU Monday 3 May

Monday 3 May

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e Single Resolution Board issued new operational guidance on liquidity and funding in bank resolution, aiming to enhance bank resolvability and preparedness for a potential resolution.

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e European Commission proposed a Council Recommendation to Member States to ease restrictions on non-essential travel to the EU, taking into account vaccination progress and worldwide epidemiological developments.

Competition law and sports: General Court’s judgment in International Skating Union v Commission brought in appeal before the Court of Justice

Single Market Programme and amended rules on the European Globalisation Adjustment Fund for Displaced Workers now published

Monday 3 May

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e International Skating Union’s appeal (C-124/21 P) against the General Court’s ruling T-93/18 was published. e judgment under appeal dismissed an annulment action against a Commission Decision on the International Skating Union’s Eligibility rules.

Oﬃcial publication was made of Regulation 2021/690 establishing a Single Market Programme and of Regulation 2021/691 on the European Globalisation Adjustment Fund for Displaced Workers (EGF).

Commission opens in-depth investigation into alleged State aid received by Fred Olsen from Canary Islands port authority

ECtHR: withdrawal of parliamentary immunity under the Turkish 2016 constitutional amendment breaches freedom of expression

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e European Commission announced it has opened an indepth investigation to reassess whether Spanish shipping company Fred Olsen SA received unlawful State aid from the Canary Islands port authority.

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e European Court of Human Rights ruled in Kerestecioğlu Demir v. Turkey (application no. 68136/16) that removing the immunity of an elected member of parliament through the mechanism introduced by a 2016 constitutional amendment is contrary to the freedom of expression (Article 10 ECHR).

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ESAs’ Joint Board of Appeal dismisses appeal by Societatea de AsigurareReasigurare City Insurance SA against EIOPA

Court of Justice to hear case on execution of Schengen Information System alert when it ceases to be relevant Tuesday 4 May

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e request for a preliminary ruling made by the Supreme Administrative Court of Lithuania (C-88/21), on the interpretation of Article 39 of Council Decision 2007/533/JHA (2nd gen Schengen Information System) was published.

Tuesday 4 May

Commission nes Sigma-Aldrich for providing incorrect information during Merck takeover investigation

Consultation on European Health Data Space: combining the digital and medical elds

Tuesday 4 May

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e Joint Board of Appeal of the European Supervisory Authorities unanimously declared an appeal lodged by the Societatea de Asigurare-Reasigurare City Insurance SA against the European Insurance and Occupational Pensions Authority to be inadmissible.

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e European Commission ned Sigma-Aldrich for providing incorrect or misleading information during the Commission’s investigation of Merck’s acquisition of SigmaAldrich. e ne amounts to 7.5 million euros.

e European Commission opened a consultation on a European Health Data Space, that would bring together digital solutions in the eld of healthcare, as part of the move towards a stronger EU health union in parallel to national health competences over healthcare policy.

Entitlement to unexercised annual leave a er time limit: case pending before the Court of Justice

Commission approves 400 million euros Danish aid scheme supporting green electricity production

Tuesday 4 May

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In AR v St. Vincenz-Krankenhaus GmbH (C-727/20), the Court of Justice will interpret Article 7 of the Working Time Directive and Article 31(2) of the Charter, speci cally on whether they preclude the interpretation of a provision of the German Federal Law on leave.

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e European Commission approved a Danish aid scheme that seeks to support electricity production from renewable sources. e scheme will support the production of electricity vis-à-vis onshore wind turbines, oﬀshore wind turbines, wave power plants, hydroelectric power plants and solar PV.

Nº57 · MAY, 8 2021

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Justice Programme for 2021-2027 period oﬃcially published

Ombudsman raises concerns over European Prosecutor-selection process but closes inquiry Wednesday 5 May

Wednesday 5 May

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Oﬃcial publication was made of Regulation 2021/693, establishing the EU’s Justice Programme for the 2021-2027 period and laying down its objectives, budget and the rules and forms of EU funding.

e European Ombudsman closed case 380/2020/VB to investigate alleged irregularities in the selection process of European Prosecutors, due to the impossibility of reviewing acts of the selection panel - as it is not an EU body, and because the Council and Commission denied responsibility.

ECB: trainee position in legal services at knowledge management team

General Court annuls EMA decision rejecting application for marketing authorisation on the ground of regulatory data protection Wednesday 5 May

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Wednesday 5 May

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e European Central Bank published a call oﬀering a traineeship in the Legal Knowledge Management team in the Directorate General Legal Services in Frankfurt am Main, Germany.

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In Pharmaceutical Works Polpharma v EMA (T-611/18), the General Court, si ing in Extended Composition, upheld an action for annulment against a decision of the European Medicines Agency not validating the applicant’s marketing authorisation application for Dimethyl Fumarate (DMF) Polpharma, a generic version of Tec dera.

Commission proposes new regulation to address foreign subsidies distorting the EU internal market

Citizens, Equality Rights and Values Programme for 2021-2027 period oﬃcially published

Wednesday 5 May

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e European Commission presented today a proposal for a Regulation addressing distortions to the EU internal market caused by foreign subsidies. Currently, EU competition, public procurement and trade defence rules do not apply to foreign subsidies that provide for an unfair advantage.

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Regulation 2021/692 establishing the EU’s Citizens, Equality Rights and Values Programme for the 2021-2027 period and laying down its objectives, budget and the rules and forms of EU funding, was published.

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EFTA Court: work assessment allowance cannot be made conditional on prior authorisation and limited stays in another EEA State in light of free movement rules

General Court conducts indirect review of Italian Chamber of Deputies decision to lower former MEPs pensions Wednesday 5 May

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e General Court rejected the appeal in Falqui v Parliament (T-695/19) brought by a former MEP against a European Parliament decision recalculating his pension. e applicant also sought annulment of the dra decision and the opinion of the Parliament’s legal service.

Wednesday 5 May

e EFTA Court delivered its judgment in Case E-8/20 – Criminal Proceedings against N, nding that work assessment allowance cannot be made conditional on stays in another EEA State that are limited in time, in light of free movement law under the EEA Agreement, or on prior authorisation through a system allowing control and follow-up of such stays.

Vacancy position for référendaire at the Court of Justice Wednesday 5 May

Bayer’s appeal against General Court’s ruling (C-499/18 P) dismissed by Court of Justice

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ursday 6 May

A vacancy announcement was published for a référendaire position in the cabinet of Judge Lycourgos at the Court of Justice.

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e Court of Justice dismissed the appeal in Bayer CropScience and Bayer v Commission (C-499/18 P) in so far as it was brought by Bayer CropScience AG, and on grounds of inadmissibility in so far as it was brought on behalf of Bayer AG.

ECB’s assessments within the SSM on whether a credit institution is ‘failing or likely to fail’ can not be subject to direct judicial review, Court of Justice rules ursday 6 May

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New rules imposing registration of interest representatives in the Transparency Register adopted by the Council ursday 6 May

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e Council of the EU adopted new rules, in agreement with the European Parliament and the Commission, to expand the scope of the Transparency Register and to introduce the registration of interest representatives as a prerequisite for certain activities covered by the Interinstitutional Agreement on a Mandatory Transparency Register.

e Court of Justice ruled in ABLV Bank v BCE and Bernis and Others v BCE (joined cases C-551/19 P and C-552/19 P) that the ECB’s assessments on whether a credit institution is ‘failing or likely to fail’ in the framework of the Single Supervisory Mechanism (SSM) can not be the subject of a direct action for annulment.

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EU law precludes marketing accreditation by third State bodies, says Court of Justice ursday 6 May

EFTA Surveillance Authority: Vacancy for temporary position of Legal Oﬃcer ursday 6 May

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A vacancy notice for the position of Legal Oﬃcer at the EFTA Surveillance Authority (ESA) was oﬃcially published.

e Court of Justice ruled in Analisi G. Caracciolo (C142/20), nding that EU law precludes national legislation that allows accreditation bodies established outside the EU to perform accreditation requested by conformity assessment bodies.

AG Tanchev advises Court of Justice to rule that Poland has failed to ful l its obligations with regard to its Supreme Court Disciplinary Chamber ursday 6 May

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Alleged unlawful German aid to lignite operators LEAG and RWE: invitation to submit comments oﬃcially published Friday 7 May

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Advocate General Tanchev delivered his Opinion in Grand Chamber case Commission v Poland (Régime disciplinaire des juges) (C-791/19), advising the Court of Justice to rule that Poland has failed to ful l its obligations under Article 19(1) TEU by way of the powers conferred to, and the lack of impartiality and independence of, the Disciplinary Chamber of the Polish Supreme Court.

Oﬃcial publication was made of the Commission’s invitation to interested parties to submit comments in the context of the investigation procedure under Article 108(2) TFEU regarding State aid case SA.53625 (2020/N).

Titanium dioxide: E171 no longer considered safe when used as a food additive due to genotoxicity

European Investment Bank: Vacancy for temporary position for HR Lawyer

Friday 7 May

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A vacancy notice was published for the position of (Senior) HR Lawyer specialised in EU staﬀ law at the European Investment Bank in Luxembourg.

e European Food Safety Authority updated a safety assessment of the food colouring titanium dioxide (E 171) nding that it is no longer safe when used as a food additive - it not being possible to rule out genotoxic eﬀects which may lead to carcinogenic eﬀects.

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EU Strategy on COVID-19 erapeutics presented by European Commission Friday 7 May

Military Mobility project and transatlantic relations: Council Decisions inviting non-EU Member States to participate now published

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e European Commission presented its Strategy on COVID-19 erapeutics on ursday, covering the full lifecycle of medicines and aiming at support the development and availability of much-needed COVID-19 therapeutics, including for the treatment of ‘long COVID'.

Friday 7 May

Alleged unlawful Italian aid to consortium Cineca: invitation to submit comments oﬃcially published

Poland: ECtHR unanimously nds breach of right to fair trial on account of method of election of Constitutional Court judge

Friday 7 May

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e Council of the EU’s recently adopted decisions authorising the coordinator of the strategic platform and project PESCO ‘Military Mobility to include Canada, Norway, and the United States as participants, were published.

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Friday 7 May

Oﬃcial publication has been made of the Commission’s invitation to interested parties to submit comments in the context of the investigation procedure under Article 108(2) TFEU regarding State aid case SA.39639 (2021/C ex 2021/NN).

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e European Court of Human Rights ruled in Xero Flor w Polsce sp. z o.o. v. Poland (application no. 4907/18), inter alia, that the way in which the Polish Sejm elected one of the judges of the Polish Constitutional Court was irregular and that therefore its decision in the applicant’s case was unlawful.

Nº57 · MAY, 8 2021

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Insights, Analyses & Op-Eds Be er Regulation: Upgrading and Going Geopolitical

PS Achmea: P L Holdings and the ‘individual arbitration agreement

by Anne-Lise Sibony and Fabrizio Esposito

by Gillian Cahill

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Op-Ed on the European Commission’s ‘Be er Regulation’ agenda, including the recent Communication ‘Joining Forces to Make Be er Laws’ - the real change concerning what impact will be looked at rather than overhauling how the impact of legislation will be appraised.

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Op-Ed on Advocate General Koko ’s Opinion in PL Holdings v Poland (C-109/20), which comes hot on the heels of the Achmea case, and which shows considerable hesitancy: appearing to try to give a li le to all sides and in doing so risking falling between two stools.

Clari cation of exception to mutual recognition under Directive 2001/24 in light of judicial protection and legal certainty by Laura Wissink

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Analysis of the Court of Justice’s judgment in Banco de Portugal and Others (C-504/19), which does not follow the Advocate General’s approach but rather interprets the relevant provisions in such a way that mutual recognition is precluded in light of the principle of legal certainty and the right to eﬀective judicial protection.

Library - Book Review Chukwudi Ojiegbe

By David Ingle READ ON EU LAW LIVE

International Commercial Arbitration in the European Union Review of a book that aims (1) to explore the impact of Brexit on international commercial arbitration in the UK and (2) the eﬀect of the Brussels Regulation 1215/2012 on what the author refers to as the ‘EU arbitration/litigation interface’.