Weekend Edition Nº 61 by eulawlive

Nº61

JUNE 5

2021

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ALEKSEJS DIMITROVS AND DIMITRY KOCHENOV

OF JUPITERS AND BULLS: THE COOPERATION AND VERIFICATION MECHANISM AS A REDUNDANT SPECIAL REGIME OF THE RULE OF LAW

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Of Jupiters and Bulls: the Cooperation and Veriﬁcation Mechanism as a redundant special regime of the rule of law 1

Aleksejs Dimitrovs and Dimitry Kochenov

e rule of law and the organisation of the national systems of the judiciary in compliance with this ideal is among the most fruitful elds of EU law’s growth these days. e transformation we are witnessing is truly tectonic both in terms of the ‘newlyfound’ powers of the EU (or of the Court of Justice) and in terms of the instant full-blown use of the newly-found powers. As analysed by one of us elsewhere with Laurent Pech, the continental legal system is coming to terms with a simple realisation that ‘EU values are law, a er all’. A er a lifetime of oating, like Golding’s Cathedral, on pure faith, the EU is busy building the foundation for its own longproclaimed constitutionalism by connecting the acquis with Article 2 values – at least some of them, as the emphasis on the rule of law implications for the Member States’ legal orders leaves justice de cit, democracy and the Court of Justice’s own independence out of the spotlight for now.

of justice in Romania. Let us call it ‘Romanian Judges’ (keeping in mind, however, that it concerned prosecutors too and more). Our task is to give the rst brief assessment of this worthy judgment – a great new addition to the mushrooming case law on the core aspects of the EU principle and value of the rule of law and, in particular, the speci c expression given to it in the form of the growing articulation of the precise meaning of judicial independence and the proper organisation of the justice systems of the Member States of the EU to ensure that the requirements of Articles 19 TEU and 47 of the Charter are met. e judgment is much richer and more complex than the room we have to discuss it here, which is why some hard choices have to be made - in what follows we concentrate on three aspects of this decision: - Assessment of the justice system’s compliance with EU law (I); - Relevance of the special regime of the Cooperation and Veri cation Mechanism (CVM) (II); and - Implications for the further EU action on the Rule of Law (III).

Recent weeks have been full of new developments. Just days a er the seminal Repubblika ruling, which we discussed here, on 18 May, the Grand Chamber of the Court of Justice delivered its judgment (here in French) in six joined cases concerning the system

1. Legal advisor for the Greens/EFA Group in the European Parliament. Views expressed here are entirely his own; Head, Rule of Law Research Group, CEU Democracy Institute, Budapest and Professor at CEU Department of Legal Studies, Vienna.

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Like Poland and Hungary, Romania followed suit in undoing some of the 'EU-imposed' reforms

nian justice system that have been amended through the reform of the pre-accession-related ‘Justice Laws’. ese included the interim appointments of the management of the Judicial Inspection, the creation of a section within the Public Prosecutor’s Office, responsible for the investigation of offences commi ed within the judiciary, and the national system of material liability of judges for judicial errors. All of these amendments made it difficult to speak of the Romanian judicial system as meeting the minimum standards of independence and, thus, the rule of law. e Court of Justice has largely agreed.

All in all, the judgment is de nitely a step forward in the articulation of the principle of the independence of the national judicial authorities as a vital part of the rule of law and provides a welcome reaﬃrmation of the non-regression principle laid down in Repubblika, besides clarifying the role that the CVM has to play in the arsenal of legal tools available to the EU in the eld of the rule of law.

I. How (not) to treat the justice system a er the EU accession? Romania joined the EU together with Bulgaria on 1 January 2007 a er the long and windy road of the pre-accession monitoring and conditionality exercise which was as detailed, especially regarding the judiciaries, as it was deeply contradictory and poorly organised: ‘A Failure of Conditionality ’. Be that as it may, Romania is with us and the EU is confronting – to a lesser extent than with Poland and Hungary, one must admit – the scale of its proclaimed pre-accession successes. Just as Poland and Hungary, where ‘Ruling by Cheating’ (to borrow Sajó’s terminology) emerged as the rule, Romania followed suit in undoing some of the EU-imposed ‘reforms’. e requests for a preliminary ruling in Romanian Judges concerned three aspects of the Roma-

In 2004, during the pre-accession exercise (the most detailed analyses of which is here, edited by O and Inglis), Romania adopted three laws, known as ‘the Justice Laws’, on the rules governing judges and prosecutors, on the organisation of the judicial system and on the Supreme Council of the Judiciary. Between 2017 and 2019, amendments were made to those laws by both laws and government emergency ordinances adopted on the basis of the Romanian Constitution (the same good old ordinances the EU frowned upon in the pre-accession context). e Venice Commission looked at the changes extensively in 2018 and 2019. In particular,

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it recommended reconsideration of the proposed establishment of a special section within the Public Prosecutor’s Oﬃce with loosely de ned jurisdiction, and supplementing the provisions on magistrates’ material liability by explicitly stating that, in the absence of bad faith and/or gross negligence, magistrates are not liable for a solution which could be disputed by another court, as well as to amend the mechanism for recovery action.

appointment by the government is not enough to nd a violation (as we have already seen in Repubblika); but it remains necessary that the appointment of interim management meets all relevant requirements. National legislation is liable to give rise to doubts when it has, even provisionally, the eﬀect of enabling the government to carry out appointments in disregard of the ordinary appointment procedure.

e methodology used by the Court is already familiar from other cases, such as A.K. e rule of law (Article 2 TEU) means eﬀective judicial protection (Article 19(1) TEU), which, in turn, means the independence of the courts, including with regard to the legislative and executive powers. Independence means exclusion of interference or external pressure. e applicable rules must make it possible to exclude not only any direct in uence, in the form of instructions, but also more indirect forms of inuence liable to guide the decisions of the judges concerned – what we have also seen in the whole panoply of the recent Prosecutors’ cases: independence is not merely the prerequisite of the courts – the requirement concerns the whole of the judicial system. e same also applies to the disciplinary regime.

e same principles apply to the special section of the Public Prosecutor’s Oﬃce. e Court is very careful in restating, several times in this judgment and over and over again in the recent case law, that the organisation of justice, including that of the public prosecutor, falls within the competence of the Member States. Still, independence is a must; direct or indirect in uence has to be excluded, including the appearance thereof. Applicable rules should ensure that criminal proceedings against judges and prosecutors cannot be used as a system of political control and fully guarantee the rights enshrined in the Charter of Fundamental Rights. An autonomous structure within the prosecution service, in that it could, depending on the rules and the relevant national context, be seen as aimed at instituting an instrument of pressure and intimidation against judges, and thus lead to an appearance of lack of independence or impartiality of these judges, is likely to undermine the con dence that justice must inspire in litigants in a democratic society and the rule of law.

e Court assesses all contested provisions against these benchmarks at two levels: could it be in general that the existing rules are applied in an inappropriate manner, and could it be so in the speci c Romanian context? For example, in general the appointment of management within the Judicial Inspection should be in accordance with the rules so that they cannot give rise to any legitimate doubt as to the use of the prerogatives and functions of that body as an instrument of pressure on judicial activity or of political control of that activity. e mere

As regards State responsibility and the personal responsibility of judges for judicial errors, the Court prefers to deal with the two issues separately. State responsibility as such is not of such a nature to jeopardise the independence of judges, even if the criteria are abstract and general. As regards the perso-

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For the la er category, another reply of the Court is quite useful in providing yet another restatement of the classical principle of primacy – even if the constitutional provision as interpreted by the Constitutional Court imposes the application of a national provision, it should be disregarded by a national court, if it comes to the conclusion that this provision is not compliant with EU law. ere are no surprises here – this is how the principle of primacy has always worked. Nevertheless, recent challenges to the principle witnessed in Poland, Germany and other Member States imply that further developments in Romania have to be followed very closely: it is astonishing that the Romanian Constitutional Court would behave in such PiS way in trying to openly undermine the very basics of EU law without the slightest touch of intellectualism and minimally sound justi cations. To say ‘we do not believe in supremacy’ is outright dumb in the EU today. And a judge comfortable to come across as dumb – even a constitutional one – is not your Hercules, even if independent.

Under EU law, direct or indirect in uence has to be excluded, including the appearance thereof nal liability of judges, this regime is within the competence of the Member States. However, in exercising this competence, Member States must respect EU law. In turn, under EU law, direct or indirect in uence has to be excluded, including the appearance thereof. Personal responsibility of judges for judicial errors is likely to in uence the decision-making. erefore, it is important that personal liability is limited to exceptional cases, in which their serious individual culpability has been established, and framed by objective and veri able criteria and safeguards to avoid any risk of external pressure. For example, the risk is there where the existence of judicial errors is determined in the proceedings regarding State liability without the judge concerned having been heard, and automatically considered as an established fact in the proceedings against the judge.

When the principle of primacy is challenged, the Commission should undertake its role as the Guardian of the Treaties. But the question arises whether it is always really necessary to wait for such a challenge. If the Commission were proactive enough, it could submit infringement actions to the Court even before the requests for a preliminary ruling, instead of leaving the seat of the Guardian of the Treaties vacant: a tactic it has amply tested in the Polish and Hungarian context, to the deep emba-

As in the Polish cases, the noble task of ascertaining, whether the relevant provisions are or are not compliant with Articles 2 and 19(1) TEU, is referred back to the national courts. Perhaps it makes sense given the sensitive nature of cases and the need to take into account the national context; at the end of the day, the elements for interpretation provided by the Court of Justice are detailed enough. On the other hand, it might provoke a split between national courts, interpreting the judgment diﬀerently in good or bad faith.

To say ‘we do not believe in supremacy’ is outright dumb in the EU today

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is deeply worrying. Moreover, complete absence of the Commission from the scene, characterised by Pech as ‘dereliction of duties’ means that the Court in some cases has to rule on the same facts twice: once instructing national courts, then nding an infringement, if the national system cannot cope. Having said this, it is of course true that the Court itself might be bolder in its preliminary rulings. In one example, the Opinion of AG Bobek in Romanian Judges suggests a straightforward answer at least on the interim appointments of management of the Judicial Inspection.

rrassment and genuine surprise of countless informed observers. It has observed the destruction of the Polish Constitutional Tribunal for years, allowing fake judges mistakenly dressed as members of the court to pose as legitimate authority in all kinds of cases, from the abortion farce to the ‘we do not believe in supremacy’ – an ongoing saga involving several usurpers pretending to be members of the court against a clear opinion of the Venice Commission and a decision of the European Court of Human Rights in Xero Flor to the contrary: all this while the Commission is silent and calling for more ‘dialogue’

All this while the Commission is silent

in the context of the ‘Poland’s Constitutional Breakdown’ that it helped to bring about through shameful inaction.

II. Cooperation and Veri cation Mechanism: any added value? e Cooperation and Veri cation Mechanism (CVM) is a strange ad hoc beast in the EU legal order. Created speci cally for the faster accession of Bulgaria and Romania, it has a special legal basis in Articles 37 and 38 of the Act of Accession of Bulgaria and Romania for the Commission to adopt appropriate measures to ensure implementation of commitments undertaken in the context of the accession negotiations and mutual recognition instruments. It has been both hailed as ineﬀective and perceived as unjust: the fact that the Polish and Hungarian governments, not the Romanian or Bulgarian,

Should the Commission decide to do its job, the Court could state directly: was there a violation of Articles 2 and 19(1) or not? No diplomatic sending-back-of-the-instructions dance – which drove the Polish justice system into chaos following A.K. – would be required. Advocate General (AG) Bobek is right in speaking of the legal ‘black holes’ in the EU today while meaning ‘Poland’: the Commission is co-responsible with PiS for shaping this reality and the fact that all the cases united as part of Romanian Judges are a product of the preliminary ruling procedure rather than the Commission doing its job

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e Romanian Judges judgment raises several interesting points re the Cooperation and Veri cation Mechanism

and eﬀectiveness of EU law. In these circumstances, in order to comply with the benchmarks, Romania must take due account of the recommendations. In particular, it may not adopt or maintain measures in the areas covered by the benchmarks which would risk compromising the result they prescribe.

are the core troublemakers says it all about CVM. Yet, CVM is our (unequal) law.

Is there added value in referring to CVM in the judgment? When pronouncing its opinion on the national provisions related to the Judicial Inspection and the section within the Public Prosecutor’s Oﬃce, the Court mentions the CVM Decision as a standard which precludes relevant national rules – however, only alongside Articles 2 and 19(1) TEU as well as the ‘non-regression’ principle imported from the one-month old Repubblika. It is unquestionably so that even in the absence of the CVM Decision, the outcome must have been the same – in other words, similar provisions would be suspicious both in Romania and in any other Member State. Only when analysing the impact of national measures regarding the special section does the Court speci cally refer to the potential impact on judges and prosecutors in charge of corruption cases, as there are speci c obligations to ght against corruption in the CVM Decision. Still, the Decision and the reports published in accordance with it might be a very useful source when assessing the national context, as required by the Court.

On the basis of Articles 37 and 38 of the Act of Accession, the Commission adopted CVM Decisions in respect of Bulgaria and Romania. ey consist of the benchmarks (for Romania – the eﬀectiveness and transparency of the judicial system, key institutions in areas like integrity and the ght against corruption at all levels, and corruption prevention) and annual reporting of both the Members States concerned and the Commission (with recommendations) on the progress made. In the latest report on Romania the Commission came to the conclusion that the closure of CVM was premature. e judgment in Romanian Judges raises several interesting points concerning CVM. e Court con rmed the validity of the CVM Decisions. As such, the Decisions are binding, including the benchmarks. e benchmarks give concrete expression to the speci c commitments entered into by Romania and the requirements accepted by the la er when the accession negotiations were closed. Romania has to achieve the benchmarks and to take the appropriate measures to achieve them as soon as possible. It is also required to refrain from implementing any measure which might jeopardise the achievement.

It is not a secret that in Bulgaria and Romania these days the CVM process is o en perceived as unnecessary and discriminatory – quod licet Iovi, non licet

As regards the Commission’s reports and recommendations, it follows from the principle of sincere cooperation, that the Member States are required to take all measures capable of guaranteeing the scope

Is there added value in referring to the CVM in the judgment?

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As indicated by the Court, in Romanian Judges sevebovi. Even the European Parliament believes that it ral points might be of relevance. e rst is the should be replaced by the establishment of an EU Treaty basis. e rule of law is enshrined in Article 2 mechanism on democracy, the rule of law and funTEU and speci ed in relation to justice systems in damental rights applicable to all Member States Article 19(1) TEU. Are both of them legally bin(but not earlier, to prevent the race to the bo om). ding and enforceable provisions? Yes – as clearly inIn any case, the poisonous eﬀects of CVM in underdicated in a number of cases, including the one desmining the idea of equality among the Member Stacribed here. tes should be considered in any context where an appeal to its purported necessity is maSecond, the Court re ects in detail de. In Romanian Judges the CVM plays no obvious role at all. If it did, it Even paper tigers on the legally binding nature of the CVM Decision. ere is no comparawould be deeply problematic, since the standards of the rule of law in the need some teeth ble act of secondary law in relation to the rule of law. But it is not needed. EU should be, precisely, equal to all, e rule of law under the Treaties is not only Romania, but also Poland binding without any secondary law and Hungary included. instruments. It is abstract but in no way unfamiliar; it might need interpretation in each particular case, but not explanation through legislation. To say that III. CVM is dead, long live the Rule of the rule of law picture in the EU is not really compleLaw Report? te at this point would be a light-hearted statement out of tune with the legal reality. e observations on CVM lead us to think whether other mechanisms might undertake its role without Finally, if the Commission adopts recommendadiscrimination. Indeed, from 2020 the Commistions on the rule of law, would they be binding? No, sion is publishing an annual Rule of Law Report but in the same vein as with the CVM recommendawhich focuses on four main pillars: the justice tions, in order to comply with the rule of law, the system, the anti-corruption framework, media pluMember States will be expected to take due account ralism, and other institutional checks and balances. of the recommendations and should not adopt or Comparing this with the CVM Decision, the overmaintain measures which would risk compromising lap is obvious (just as with the failed pre-accession such compliance. is approach, if taken on board political conditionality exercise for that ma er). by the Commission and con rmed by the Court, Could this non-discriminatory failure distracting could actually help address the rule of law breaches, the relevant Commissioners’ from thinking about especially beyond justice systems (not covered by going to Court and defending the rule of law ‘handsArticle 19(1) TEU): Article 2 TEU might not (yet) on’ be reborn as the new CVM for all Member Stabe breached so that Article 7 procedure comes into tes, especially if the Commission properly listens to play, but the Member State might be found in infrincriticism and addresses speci c recommendations gement of Article 4(3) TEU when persistently refuto each of them? sing to address the Commission recommendations. Even paper tigers need some teeth.

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News Highlights Week 31 May to 4 June 2021

Access to documents concerning the legislative process: action brought by Emilio De Capitani against Council Monday 31 May

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Commission publishes guidance for harmonised application of single-use plastic rules and advances on shing gear monitoring

An action for annulment (T-163/21) brought by Emilio De Capitani, former Head of Unit of the European Parliament’s Public Liberties Commi ee, against the Council’s decision to refuse access to certain documents was published.

Monday 31 May

Challenge to extended gambling licences in the Netherlands: pending annulment action before General Court published

CINEA: Vacancy for temporary position for Senior Legal Advisor

Monday 31 May

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In European Gaming and Be ing Association v Commission (T167/21), the annulment action before General Court concerning a European Commission Decision to approve prolongation of gambling licences in the Netherlands as a lawful State aid measure was published.

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e European Commission published its guidelines on the EU rules on single-use plastics. It also adopted an Implementing Decision on the format for reporting data and information on shing gear placed on the market and waste shing gear collected in Member States.

Monday 31 May

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A vacancy notice for the position of Senior Legal Advisor at the European Climate, Environment and Infrastructure Executive Agency (CINEA) in Brussels was published.

ESMA issues negative Opinion on accepted market practice on liquidity contracts

Actions for damages regarding ECB’s licence withdrawal of Trasta Komercbanka brought before General Court

Monday 31 May

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e European Securities and Markets Authority issued a negative Opinion on an intended Accepted Market Practice notied by the French Markets Authority.

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Oﬃcial publication was made of two actions for damages (T135/21 and T-145/21) against the European Central Bank by the bank Trasta Komercbanka and individuals concerning harm suﬀered due to revocation of the bank’s licence, leading to the bank’s liquidation.

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European Economic Area Council’s joint statement: main takeaways Monday 31 May

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Key points from the European Economic Area Council’s meeting on 28 May to discuss the overall functioning of the Agreement on the EEA Agreement and debate Strategic Autonomy.

Own Resources Decision rati ed by all Member States Tuesday 1 June

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e Council of the EU announced that it received formal notications from all 27 Member States of rati cation of the Own Resources Decision, enabling the Commission to borrow up to 750 billion euros in capital markets on behalf of the EU to distribute to Member States.

Commission proposes relaxing of travel measures along with ‘emergency brake’ mechanism if pandemic situation worses Monday 31 May

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e European Commission proposed to relax the current suggested rules in coordinating Council Recommendation for travel restrictions imposed by Member States, as well as providing an opportunity for this to be changed again quickly if virus-cases increase again.

ECtHR: Grand Chamber ruling on requirements for compulsory con nement imposed on the grounds of mental disorders Tuesday 1 June

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e Grand Chamber of the European Court of Human Rights ruled in Denis and Irvine v. Belgium (applications nos. 62819/17 and 63921/17) that continued compulsory con nement on account of mental disorders, despite legislative changes, did not breach the ECHR.

General Court to hear action for annulment against marketing authorisation for Librela – bedinvetmab

SRB revises approach on Public Interest Assessment policy in resolution planning

Tuesday 1 June

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e General Court annulment action in Virbac v Commission (T-138/21) was published, challenging several approvals of marketing authorisations by the European Commission granting marketing authorisation for ‘Librela — bedinvetmab’, a veterinary medicinal product.

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e Single Resolution Board published an addendum which revises its Public Interest Assessment policy in resolution planning on Monday.

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Commission launches new European Tax Observatory Tuesday 1 June

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Council and Parliament reach agreement on tax disclosure rules for multinationals

e European Commission announced the launch of the European Tax Observatory, a new research laboratory to assist in the EU’s ght against tax abuse.

Wednesday 2 June

Commission amends EU Air Safety List including more airlines subject to an EU ban

General Court: expiry of earlier IP right does not preclude having a legitimate interest and bringing an action for annulment

Wednesday 2 June

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e Council of the EU and the European Parliament reached political agreement on a Directive se ing out tax transparency rules obliging multinationals operating in the EU to disclose pro ts, taxes, and number of employees in each EU Member State and countries on the EU’s list of noncooperative jurisdictions for tax.

Oﬃcial publication was made of Commission Implementing Regulation 2021/883, updating the EU Air Safety List, following the communication of relevant information by Member States, the EU Aviation Safety Agency and third countries.

Wednesday 2 June

Council agrees negotiating mandate on International Procurement Instrument

Commission presents new Schengen Strategy

Wednesday 2 June

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e Council of the EU agreed on its negotiating mandate regarding the creation of an International Procurement Instrument, to increase European leverage in third countries’ procurement markets and to a ain a level playing eld for EU businesses operating in those markets.

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e General Court, si ing in extended composition, delivered its judgment in Style & Taste v EUIPO — e Polo/Lauren Company (Representation of a polo player) (T-169/19), upholding a decision of the EUIPO’s Fi h Board of Appeal.

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e European Commission presented its new Schengen Strategy, the rst oﬃcial policy document on the border-free area since it suﬀered major reinstatement of borders following the outbreak of the COVID-19 pandemic.

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General Court provisionally suspends waiver of parliamentary immunity of Catalan MEPs Wednesday 2 June

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e Vice-President of the General Court ordered provisional suspension of the European Parliament’s decision to waive the parliamentary immunity of three Catalan MEPs in order for them to face trial in Spain over their alleged role in organising the illegal secessionist referendum that took place in 2017.

Actions for damages based on inaccurate prospectus information may be led by quali ed investors too, says Court of Justice Wednesday 2 June

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e Court of Justice ruled in Bankia (C-910/19) that under EU law, standing to bring an action for damages based on inaccurate information contained in a prospectus extends to both retail and quali ed investors.

ECtHR accepts request for an advisory opinion by the French Council of State Wednesday 2 June

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e European Court of Human Rights announced on Wednesday its acceptance of a request for an advisory opinion (no. P16-2021-002) from the French Council of State (Conseil d’Etat) pursuant to the mechanism of advisory opinions introduced in 2018 by Protocol No. 16.

New judges appointed to Court of Justice and General Court Wednesday 2 June

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Member States reappointed Judges Rodin and Biltgen as judges of the Court of Justice, and newly appointed Mr Zoltán Csehi as judge of the Court of Justice. Ms Maja Brkan was appointed judge of the General Court.

ECB publishes annual review of the international role of the euro Wednesday 2 June

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e European Central Bank published its annual review of the international role of the euro, concluding that the single currency remained broadly stable a er the shock of the pandemic and continues to be the second most widely used currency globally a er the US dollar.

Court of Justice dismisses Hungary’s action against Parliament’s triggering of Article 7 TEU procedure Wednesday 2 June

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e Grand Chamber of the Court of Justice delivered its judgment in Hungary v European Parliament (C-650/18), dismissing an action for annulment brought by Hungary against the European Parliament’s resolution of 12 September 2018 triggering the Article 7 TEU procedure.

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AG Rantos’ Opinion in Council v Hamas: General Court’s judgment should be set aside ursday 3 June

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Age-limit of 50 years for accessing the profession of notary is contrary to EU law, Court of Justice rules ursday 3 June

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Advocate General (AG) Rantos advised the Court of Justice in Grand Chamber case Council v Hamas (C-833/19 P), on EU sanctions to combat terrorism following UN Security Council Resolution 1373 (2001), and in particular the restrictive measures adopted against ‘Hamas’, including ‘HamasIzz al-Din al-Qassem’.

e Court of Justice handed down its judgment in Ministero della Giustizia (Notaires) (C-914/19) clarifying the interpretation of the EU principle of non-discrimination on the grounds of age in employment and occupation.

AG Pitruzzella: ‘dual characterisation’ of a cartel must be made in statement of objections

Grand Chamber ruling on the social security legislation applicable to staﬀ of cross-border temporary employment agencies

ursday 3 June

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ursday 3 June

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Advocate General Pitruzzella advised the Court to partially dismiss four appeals concerning actions for the annulment of a Commission decision on collusive agreements relating to bidding events concerning optical disk drives for notebook and desktop computers organised by two computer manufacturers.

e Grand Chamber of the Court of Justice, in TEAM POWER EUROPE (C-784/19), and in the context of temporary-work agencies, clari ed the meaning of the concept of an employer that ‘normally carries out its activities’ in a given Member State.

Council agrees its position on air traﬃc management reform

Public consultation launched by Commission on an EU Data Act

ursday 3 June

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e Council reached a common position on the reform of the Single European Sky, which will be focused on the improvement of the air traffic management services system with aims to increase capacity, improve cost-efficiency and increase the system’s ability to adapt to variations in traffic, while also trying to reduce aviation’s emissions.

ursday 3 June

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e European Commission launched a public consultation on an upcoming and proposed EU Data Act that would collect feedback from citizens, businesses, online platforms, academics, civil society, administrations and all interested parties on the ma er of rules on sharing industrial data, and the rights and obligations of parties in data transactions.

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Digitalising the identity of European Citizens: Commission proposes a new law Friday 4 June

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A ‘European Digital Identity’ was proposed by the European Commission which would allow European Citizens to prove their identity digitally and share electronic documents easily, allowing access to online services that would be recognised throughout the EU.

Commission greenlights German State aid scheme for cogenerated electricity Friday 4 June

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e European Commission announced on ursday that it approved the extension (until 2026) and modi cation of an existing German scheme (Kra -Wärme-Kopplungsgesetz) to support the production of electricity from new, modernised and retro ed highly eﬃcient cogeneration plants (CHP), with the exception of coal and lignite- red CHP.

Interpretation of EU rules on free allocation of emission allowances: AG Hogan’s Opinion in ExxonMobil Production Deutschland Friday 4 June

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Advocate General Hogan provided the Court of Justice with his Opinion in ExxonMobil Production Deutschland GmbH v Bundesrepublik Deutschland (C-126/20) on ursday, on the interpretation of Commission Decision 2011/278 determining transitional EU-wide rules for harmonised free allocation of emission allowances.

Insights, Analyses & Op-Eds e proposed Digital Markets Act: the centralised model and its (possible) discontents Editorial Board of EU Law Live

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Editorial Comment on the proposed Digital Markets Act, a major policy initiative with the goal of ensuring a fair and competitive digital economy.

CJEU clari es when a shape must be considered necessary to obtain a technical result for the purposes of trademark invalidation by Bernd Justin Jü e

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Analysis of Court’s dismissed appeals in and interpretation of the absolute ground of refusal that a sign cannot be registered as a trademark if the sign consists exclusively of ‘the shape of goods which is necessary to obtain a technical result’. Read on EU Law Live

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Big Brother (cannot) Watch: the Grand Chamber ruled against surveillance in the Snowden revelation’s a ermath by Oreste Pollicino and Federica Paolucci

e EU’s Digital Services Act: are we still free to conduct business? by Ben Allgrove

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Op-Ed exploring whether the restrictions on freedom to conduct a business in the proposed Digital Services Act go beyond what is proportionate to achieve the stated policy objectives making them incompatible with Article 16 of the Charter: a topic receiving surprisingly li le airtime in discussions to-date both about the DSA and technology regulation in general.

Op-Ed on the Grand Chamber of the European Court of Human Rights’ most important judgment on mass and bulk surveillance yet: Big Brother Watch and Others v. United Kingdom (application nos. 58170/13, 62322/14 and 24960/15), followed by Centrum för rä visa v. Sweden (application no. 35252/08), lodged lodged a er Edward Snowden revealed the existence and use of the surveillance system between the intelligence services of the United States and United Kingdom.

Entry bans against third country nationals under the EU Return Directive: the Court of Justice’s decision in Westerwaldekreis by Stefan Salomon

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Analysis of the practical rami cations of the Court of Justice’s ruling in Westerwaldekreis (C-546/19), which go beyond the narrow questions and improve the legal position of irregularly staying third country nationals, who cannot be deported.

Library - Book Review

By Janek Tomasz Nowak READ ON EU LAW LIVE

Laure Clément-Wilz

La Cour de justice de l’Union européenne Review of a book which stands out because it is wri en ‘by someone outside of the CJEU’, focuses ‘exclusively on the CJEU as an institution’ and covers its organisation and internal functioning, mixing a descriptive and historical overview with current debates and a critical stance.