Weekend Edition Nº64 by eulawlive

Nº64

JUNE 26

2021

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SPECIAL ISSUE

YOUNG FIDE SEMINAR 2021

INTRODUCTION REFLECTIONS ON THE YOUNG FIDE SEMINAR 2021 THE YOUNG FIDE 2021 BOARD AND THE YOUNG RAPPORTEURS

GIULIA GENTILE

LISETTE MUSTERT

‘FARAWAY, SO CLOSE!’ THE PRINCIPLE OF EFFECTIVE JUDICIAL PROTECTION AND THE CONSTITUTIONAL TRADITIONS COMMON TO THE MEMBER STATES

OVERCOMING THE CHALLENGES OF THE GDPR ENFORCEMENT MODEL: A LARGE ROLE FOR THE EUROPEAN DATA PROTECTION BOARD

NIELS KIRST

THE INTERNAL RULE OF LAW OF BIG TECHNOLOGICAL CORPORATIONS: WHY NEW CONCEPTIONS OF LAW ARE NEEDED TO DEAL WITH BIG TECH

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Reﬂections on the Young FIDE Seminar 2021 1

The Young FIDE 2021 Board and the Young Rapporteurs

FIDE Congress and contribute to the fourth Congress volume.

Introduction is special Weekend Edition is dedicated to the Young FIDE Seminar that took place on 12 May 2021 in an online se ing. e road to this Young FIDE Seminar, hosted by Leiden University, started shortly a er the XXVII FIDE Congress in Estoril in 2018, when a small group of young EU lawyers gathered to re ect on the set-up of Young FIDE. Originally, so-called PhD-Seminars were organised on the rst day of previous FIDE Congresses. In order to promote an even broader discussion and dialogue between EU law academics and practitioners, it was decided the name of the Seminar would be changed, and that it would be made accessible not only to young EU lawyers in academia, but also young EU law practitioners. In addition, three Young Rapporteurs (Sim Haket, Teresa Quintel and Daniel Mândrescu) participated in the diﬀerent parallel sessions during the Seminar and re ected on the diﬀerent presentations and discussions. ey will also report back to the

Initially, the Seminar was planned as an in-person event in May 2020. However, it became clear in spring 2020 that the Young FIDE Seminar had to be postponed due to the pandemic. e Young FIDE Commi ee decided to plan the Seminar as an online event on 12 May 2021, one year a er the original date. Although it was of course disappointing not to have a discussion in person, the new online se ing had its own advantages. It enabled a larger than usual number of EU lawyers to participate in the Seminar – also thanks to the generous publicity support of EU Law Live – and provided a much-needed space for debate about the EU and the many challenges Europe faces at the moment. e Seminar was opened by Professor Sacha Prechal, Judge at the Court of Justice, who re ected in her talk on the legal challenges emerging in rela-

1. Frederik Behre (PhD candidate, Leiden University), Clara van Dam (Assistant Professor, Leiden University), Maarten Schippers (Administrative Jurisdiction Division, Dutch Council of State), and Marijn van der Sluis (Assistant Professor, Maastricht University). 2. Sim Haket (Assistant Professor, Utrecht University), Daniel Mândrescu (PhD candidate, Leiden University), Teresa Quintel (PhD candidate, University of Luxembourg and Uppsala University).

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e rst paper is wri en by Lennard Michaux. It argues that, as regards (hidden) de minimis standards in internal market law (see for example Krantz, C-69/88), the Court of Justice has rejected a more quanti ed approach in favour of more abstract rules. Michaux argues that this allows the Court to remain the sole institution to provide guidelines on when EU internal market law applies, whereas a more quanti ed approach (leaning more heavily on a determination of the facts of the case) would give more power to national courts. At the same time, the opposite can be witnessed regarding the purely internal situation doctrine (Ullens de Schooten, C-268/15). e Court leaves it to the national courts to demonstrate how a seemingly internal situation might still have a link with the fundamental freedoms, and national courts are given a crucial role to resolve issues of reverse discrimination. Hence, according to Michaux, certain core concepts of EU internal market law seem to be directly shaped a er the Court’s preferred type of interaction with national courts.

tion to the three FIDE topics, thereby touching on questions related to the rise of ‘Big Tech’, on the thin line between interpretation and application of EU law, and on how to accommodate diversity in the European Union. During the main part of the Seminar, a selection of young EU lawyers had the opportunity to present their papers on one of the three FIDE topics: (1) National courts and the enforcement of EU law; (2) Data protection; and (3) Competition law and the digital economy. is provided the basis for stimulating discussions together with the audience, Young Rapporteurs and other expert panelists. e concluding plenary session was chaired by Corinna Wissels, president of FIDE XXIX. During this concluding session the Young Rapporteurs re ected on the presentations and discussions in the diﬀerent parallel sessions. In the following, the three Young Rapporteurs share their insights from the parallel sessions on the three FIDE topics. e additional three contributions of this Weekend Edition are wri en by EU lawyers who presented their papers during the Young FIDE Seminar: Giulia Gentile, Lise e Mustert and Niels Kirst.

e second paper is wri en by Vincent Piegsa. It rst discusses the in uence of EU law on national procedural law. Discussing, for example, EU legislation concerning representative actions for the protection of the collective interests of consumers and the European Public Prosecutor’s Oﬃce, Piegsa predicts that corresponding national procedural rules are likely to be applied more in line with the concerned EU law provisions. Secondly, the paper addresses the in uence of EU law on requirements concerning the organisation of Member States’ judiciaries. Here, the in uence is considered to be less far-reaching. However, recent case

Young FIDE Topic 1: National Courts and the Enforcement of EU Law – the pivotal role of national courts in the EU legal order – by Sim Haket ree papers formed the background to the discussions on the rst topic (national courts and the enforcement of EU law).

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GDPR. According to the author, external privacy harms focus on preventing personal data breaches and limiting the potential eﬀects, whereas inherent privacy harms focus on the power imbalance within processing, and play into control theories. She argued that inherent risks can only be changed by changing the processing, whereas external risks may be changed by introducing security measures.

law shows that the principles established in proceedings against rule of law backsliding mean that other Member States might not be le undisturbed (Land Hessen, C-272/19). e nal paper – which is presented in further detail in this Weekend Edition of EU Law Live – discusses the principle of eﬀective judicial protection and common constitutional traditions, and is wri en by Giulia Gentile. ere is a common trend, as this paper also touches upon rule of law backsliding, yet in the context of a distorted use of the notion of constitutional traditions as a shield applied against the requirements of EU law. Another common trend is that all papers to a larger or smaller extent provide relevant insights on the issue of the division of tasks (and competences) between the Court of Justice and national courts. Finally, the papers and the discussion focused on the case law of the Court, and not so much on the actual application of EU law by the national courts themselves.

e second paper assessed the tools that data protection authorities (DPAs) have at their discretion to overcome existing difficulties to enforce the GDPR and how individuals can challenge decisions taken by DPAs. During the panel, the author discussed the complexity of the system of DPA cooperation under the GDPR and looked at both limits and challenges regarding the right to an effective judicial protection, for instance, regarding difficulties that national courts may encounter with regard to composite procedures. e third paper discussed the Google v CNIL (C507/17) judgment from September 2019 and its impact on the interplay between data protection and freedom of information. e author argued that the Court of Justice le the door open for the EU legislator to amend the current data protection legislation in order to make de-referencing global. e questions raised during the panel discussion looked at whether freedom of speech was really the core issue of the Google v CNIL judgment and if the author believes that the outcome of the judgment was in uenced by economic factors, given the fact that the extraterritorial reach of EU law had already experienced a political backlash several times before.

Young FIDE Topic 2: Data Protection – se ing global standards for the right to personal data protection – by Teresa Quintel e rst paper discussed during the panel on data protection and privacy dealt with the determination of risk in data protection, providing a new approach on how to calculate such risk under the General Data Protection Regulation 2016/679 (GDPR). e author argued that we should distinguish between inherent and external risks in order to understand the concept of risk under the

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e rst paper, by Niels Kirst - also covered in this Weekend Edition of EU Law Live, suggested looking at this challenge through the prism of rule of law, which would provide more guidance on the strictness and scope of application of competition law policy in digital markets.

e common trend in all three papers when being read together is that they leave the impression that the GDPR has still not achieved its full potential, although three years have already passed since its entry into force. is condition is caused by the GDPR’s lack of clarity, vagueness, divergent interpretations, and its over-complex enforcement mechanism. It is somewhat disappointing to have read these papers only a few days before the third anniversary of the GDPR’s entry into force. e GDPR initially raised high hopes but for the most part those hopes did not come true. In the words of Johnny Ryan ‘the GDPR is a collective hallucination’.

e second paper, by David Pérez de Lamo, covered the topic of ‘killer acquisitions’ in the context of European merger control that explored the various difficulties associated with this newly identied phenomenon and offered some potential solutions. In search of solutions, the paper reviewed the various existing referral possibilities to bring ‘killer acquisitions’ within the scope of the EUMR when these fall short of the noti cation thresholds. Subsequently, the paper recommended improving the substantive analysis within the EUMR by adopting a more dynamic test. Such a test should look at the effect of transactions on competition in the ‘innovation space’ where it takes place rather than within the con nes of strictly de ned (relevant) markets.

Young Fide Topic 3: EU Competition Law and the Digital Economy – protecting free and fair competition in an age of technological (r)evolution) – by Daniel Mândrescu During the Young FIDE conference the third panel of the day covered some of the most recent challenges involved in the application of EU competition policy in digital markets. e panel covered four very interesting papers, which addressed several of the many diﬀerent angles of such challenges. Young scholars a empted in those papers to tackle the challenge faced by all competition law practitioners and scholars these days, namely adapting the current legal framework of (EU) competition law to the economics of digital markets and online platforms that constitute the principal actors in such markets.

e third paper, by Siyou Zhou, also explores the difficulties associated with mergers in digital markets, particularly when these concern online platforms. e paper offers a rich overview of the many procedural and substantive complexities involved in the merger review process. ese complexities include dealing with transactions that fall below the turnover thresholds of the EUMR as well as other review mechanisms, de ning relevant markets, the inclusion of data related concerns in the substantive analysis of transactions, as well as accounting for the indirect network effects at play for this purpose. In this respect the paper

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analysing Apple’s App Store rules and their application in practice with respect to both app developers and consumers.

oﬀers a great deal of examples on how such ma ers were dealt with across multiple jurisdictions and the implications of these various approaches in practice.

Overall the submi ed papers represent a great a empt to further explore and resolve some of the major challenges faced by practice and academia these days. It would appear that when faced with these challenges the young scholars were all open towards exploring solutions and insights outside the familiar scope of the current legal framework of competition law, which may at times be inevitable when dealing with unforeseen developments such as those brought by digital markets.

e fourth paper, by Friso Bostoen and myself, covers the topic of abuses of dominance in the speci c context of app stores. e paper explores to what extent the concerns raised with respect to Apple’s App Store could lead to ndings of abuse under Article 102 TFEU. Accordingly, the paper explores the possible market de nition(s) in the context of such a case as well as the possible forms of abuse that could be claimed to take place when

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‘Faraway, so close!’ The principle of eﬀective judicial protection and the constitutional traditions common to the Member States Giulia Gentile

Under the aegis of the FIDE 2021 Topic ‘National Courts and the Enforcement of EU Law’, this piece oﬀers insights into the role of constitutional traditions common to the Member States in shaping the EU general principle of eﬀective judicial protection.

To explore these issues, this Long Read focuses on the use of common constitutional traditions in the EU case law, primarily in Opinions of Advocates General (AGs), concerning the EU principle of eﬀective judicial protection.

is principle ensures that EU law is eﬀectively enforced via a series of procedural guarantees, including the principle of judicial independence and the right to access to courts. Since the Johnston case, it is se led case law that this principle stems from the European Convention of Human Rights (ECHR) and the constitutional traditions common to the Member States. While the in uence of the ECHR over the development of EU eﬀective judicial protection has been extensively explored in the literature, less a ention was paid to the impact of constitutional traditions from the Member States.

1. Constitutional traditions common to the Member States e concept of ‘constitutional tradition common to the Member States’ was rst used in the Internationale Handelsgesellscha judgment, in which the Court of Justice explained that the ‘protection of [fundamental] rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community’. With this dictum, the Court masterfully appeased national courts’ criticisms concerning the absence of fundamental rights protection at the Community level. At the same time, Internationale laid the foundations for the Community’s autonomy in the eld of fundamental rights by stressing that the application of those rights should be ensured ‘within […] the structure and objectives of the Community’.

Nevertheless, studying the in uence of common constitutional traditions over the EU principle of eﬀective judicial protection allows re ection on the relationship between the EU and the national legal orders: the EU is an autonomous legal system, but is inevitably shaped by the legal concepts and traditions originating from the Member States.

1. Lecturer and Postdoctoral Researcher, Maastricht University, email: g.gentile@maastrichtuniversity.nl

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A recent Opinion by AG Koko suggests that the Court of Justice does not interpret individual national constitutional traditions. e competence to identify and interpret the Member States’ constitutional ethos is le to the national courts. However, the Court may draw inspiration from the constitutional traditions common to the Member States to establish general principles of EU law, which are subject to the exclusive interpretation of the Court. Furthermore, the Court of Justice may assess the compatibility of a constitutional tradition invoked by a Member State with EU law. In so doing, the Court would not interpret the constitutional tradition per se, but based on the information provided by the referring court or the parties of the case, it may consider a specic application of a national constitutional tradition to be precluded in the light of EU law. In any event, the protection of national constitutional identities and traditions at the EU level is subject to compliance with the EU founding values. All in all, the existence of common constitutional traditions in the EU and their translation into EU general principles have twofold importance. On the one hand, the institutionalisation of a shared legal heritage among the EU Member States re ects the EU’s constitutional identity. On the other hand, by identifying similarities in the Member States’ approach to constitutional traditions, the Court fosters the synergies between Member States’ legal orders. e identi cation of commonalities among legal heritages may also be facilitated by Article 2 TEU, which lists the EU founding values as emerging from the constitutions and traditions of the Member States. EU fundamental values and shared constitutional traditions mutually reinforce each other. erefore, common constitutional traditions could also operate as an additional weapon to protect the EU founding values, including the rule of law, from abuses commi ed by national authorities. At this point, we should discuss how to identify a ‘common constitutional tradition’. While the concepts of ‘tradition’ (a consolidated practice) and ‘constitutional’ (related to the ‘constitution’ understood broadly) are easy to grasp, what remains controversial is the notion of ‘common’. Does this adjective refer to legal heritages that exist in all Member States? Or does it concern major or even selected trends in constitutional traditions of the Member States?

Common constitutional traditions could be an additional weapon to protect EU founding values from abuse by national authorities

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It is submi ed that the potential consolidation of a speci c methodology to identify constitutional traditions may lead to excessive formalism. In particular, the use of a speci c approach might run counter to two additional considerations: the need to respect the pluralism of national constitutional traditions – when compatible with the EU core values; and the power of the Court to freely shape an autonomous level of protection of fundamental rights from the national ones. erefore, the Court should freely rely on any legal heritages in the Member States to enrich the EU’s constitutional identity.

2.1 Constitutional traditions as constitutionalbuilding rhetoric In the rst category of Opinions, the in uence of common constitutional traditions on the EU standards of judicial protection is not explored in the AGs’ reasoning. Rather, common constitutional traditions are used as an instrument of rhetoric to build the EU’s constitutional identity, which is autonomous but linked to those of the Member States and strictly dependent upon the EU principle of effective judicial protection. , An example of this use of constitutional traditions in conjunction with the principle of effective judicial protection is the renowned opinion of AG Jacobs in the UPA case, concerning the criteria of direct and individual concern under Article 230 EC. AG Jacobs recalled the se led case law according to which the principle of effective judicial protection stems from constitutional traditions common to the Member States and Articles 6 and 13 ECHR. He then explained that the proceedings at the national level may not comply with the EU principle of effective judicial protection. erefore, according to AG Jacobs, the principle should have been interpreted as requiring access to the Communities’ courts to challenge Community acts that do not require implementing measures. In reaching this outcome, AG Jacobs did not rely on the analysis of the constitutional traditions common to the Member States as to locus standi.

2. Constitutional traditions in action: how do they shape the EU principle of effective judicial protection? e analysis of the case law reveals that the Court has consistently referred to the concept of common constitutional traditions in conjunction with the EU principle of effective judicial protection. However, in its judgments, the Court has not discussed the in uence of those traditions in giving form to that EU principle of effective judicial protection. It is possible to trace a more detailed analysis of the impact of common constitutional traditions on the EU standards of effective judicial protection in the Opinions of the AGs. ey have drawn on constitutional traditions in three ways: as constitutionalbuilding rhetoric (2.1.); as a limit to the expansion of effective judicial protection (2.2.); and as a dialogue-tool for the development of EU standards of effective judicial protection (2.3.).

2.2 Constitutional traditions as a limit to the expansion of eﬀective judicial protection In the second series of Opinions on eﬀective judicial protection, AGs have applied a majoritarian approach regarding the constitutional traditions of the

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Member States. Consequently, in case a shared approach concerning constitutional traditions on judicial protection could not be identi ed, AGs have concluded that the EU principle of eﬀective judicial protection should not be expanded to incorporate broader rights existing in selected Member States.

For instance, in Venezuela v Council of the European Union AG Hogan analysed the constitutional traditions of the Member States regarding the standing of third (non-EU) States before courts. e study of national traditions was carried out to address the question of whether third States could access the jurisdiction of the Court of Justice of the EU in ace Opinion of AG Mengozzi in DEB is emblematic tions for annulment. It is indeed a requirement stemin this respect. e case concerned the question of ming from the principle of effective judicial protecwhether legal entities could be granted legal aid to tion that any natural or legal person has the right to pursue claims based on EU access to courts to protect law under the principle of the rights they derive from e Opinion in Venezuela v effective judicial protecthe EU legal order. AG Hotion. In dealing with this gan submi ed the argument Council shows that constitupoint, AG Mengozzi explaithat ‘at least in certain Memned that ‘it is impossible to tional traditions can still inspire ber States, third countries infer from the respective can bring actions before nadevelopment of the principle practices of the Member Stational courts, which can in of effective judicial protection turn submit […] requests tes any constitutional tradition whatsoever common for preliminary ruling to the to the Member States’. He Court of Justice, including rethen concluded that ‘there is no general principle regarding the validity of Union acts’. Arguing for a libequiring Member States to grant legal aid to legal perral interpretation of standing in favour of this catesons on the same conditions as those applying to nagory of applicants, AG Hogan’s view was that the tural persons’. erefore, the absence of a common ‘constitutional traditions of the Member States […] approach as to legal aid for legal entities in the Memdo not appear to stand in the way of such an open inber States in uenced AG Mengozzi’s views on the terpretation’. e Opinion in Venezuela v Council content of effective judicial protection. thus shows that constitutional traditions can still be a source of inspiration for developing the principle 2.3 Constitutional traditions as a dialogue-tool of effective judicial protection. In the third category of Opinions, AGs have actively engaged in comparative analysis and have openly reected on the possibility of incorporating elements of judicial protection stemming from national orders beyond a majoritarian approach. What joins these Opinions are an open stance on national constitutional traditions and a more in-depth engagement with their role at the EU level.

3. Conclusion is Long Read has analysed the in uence of common constitutional traditions in shaping the EU principle of eﬀective judicial protection. By discussing the role of constitutional traditions in the EU and how AGs have used this concept in their Opi-

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e full power of constitutional traditions awaits to be unlocked like a Pandora's Box

nions on effective judicial protection, it has sought to highlight the potential for common constitutional traditions in further delineating the boundaries of effective judicial protection, especially when constitutional traditions are embraced as a dialoguetool. Indeed, although the EU has its own system of remedies, Member States can still offer inspiration for developing the EU standards of effective judicial protection.

To conclude, the role of common constitutional traditions in the EU multi-level system is still underexplored: the full power of constitutional traditions awaits to be unlocked like a Pandora’s Box. It is true that, once opened, the Box brought to the world all kinds of evil. However, it also brought hope.

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Overcoming the challenges of the GDPR enforcement model: a large role for the European Data Protection Board Lisette Mustert

the DPAs under the cooperation mechanism (Article 65(1) GDPR). is results in a highly complex enforcement system, involving both national and EU authorities.

With studies proving that 90% of businesses are on the internet and 80% of all Europeans have broadband access, a uniform system of substantive data protection rules was highly needed. erefore, three years ago, the General Data Protection Regulation (GDPR) entered into force. Enforcement of these rules, however, remains primarily the responsibility of national data protection authorities (DPAs). e DPAs cooperate with each other in order to adequately respond to violations of the GDPR that have a cross-border reach (Article 60 and 4(23)(a)(b) GDPR). In those cases, the GDPR provides that in accordance with the one-stop-shop mechanism, the lead DPA shall be primarily responsible for the investigation and shall take a nal decision on the ma er. However, it shall endeavour to reach consensus with the other concerned DPAs. e national DPAs cooperate under the coordination of the European Data Protection Board (EDPB). e EDPB may also adopt binding decisions addressed to the DPAs, inter alia, when disputes arise between

e complexity could even lead to underenforcement, for instance, because some lead DPAs suﬀer from an overload of cases because the caseload is not uniform across the EU – as a result of how multinationals locate their headquarters, certain Member States are handling more and more complex complaints than others. In the rst two and a half years a er the entry into force of the GDPR, the Irish DPA – the Data Protection Commission – received 947 cross-border complaints via the one-stop-shop mechanism that were submi ed to other DPAs and 15,000 complaints which were submi ed to the Irish DPA directly – which probably included hundreds of complaints dealing with crossborder GDPR violations. Nevertheless, it was only in December 2020 when the Irish DPA adopted its rst decision in a cross-border case due to the over-

e highly complex enforcement system can even lead to under-enforcement

1. PhD candidate, Faculty of Law, Economics and Finance, University of Luxembourg, on enforcement and accountability challenges in the composite system of GDPR enforcement under the supervision of Prof. Herwig Hofmann and with the support of the Luxembourg National Research Fund (FNR) (PRIDE17/12251371). For correspondence lise e.mustert@uni.lu

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has many possibilities to in uence the enforcement practices of the DPAs. is is, however, a cumbersome procedure and it needs to be seen how this works out in practice (see the Advocate General’s Opinion in Facebook Ireland and Others, C645/19).

load of cases in comparison to its capacities. Since then, only three other decisions have been adopted by the Irish DPA in a cross-border case and there were only 27 ongoing cross-border inquiries as of 31 December 2020. Along with a lack of capacity, many also question Ireland’s commitment to enforce the EU’s data protection laws and warn that the margin for manoeuvre given by the GDPR should not lead to a race between Member States to a ract the big tech companies’ headquarters.

Alternatively, DPAs could request a binding decision from the EDPB in accordance with Article 65(1) GDPR , for instance when a dispute arises between the DPAs under the cooperation mechanism. Such a dispute may arise when a concerned DPA expresses its objections to a dra decision of the lead DPA, but the la er has rejected these objections (Article 60(4) GDPR). Importantly, the EDPB shall only take a position on the merits of the issues raised by the objections if these objections are relevant and reasoned (EDPB Guidelines 09/2020). is highlights the need for concerned DPAs to be well informed – mainly by the lead DPA – because they will otherwise not be able to participate in a meaningful way and submit suﬃciently reasoned objections (Mustert 2020). e importance of being well informed and receiving suﬃcient factual information is also highly important for the EDPB as it would otherwise not be able to assess the raised objections (EDPB Decision 01/2020).

What could other concerned DPAs then do to overcome these challenges to enforcement in order to ensure that the GDPR is consistently enforced and to push the lead DPA to speed up? e GDPR provides several mechanisms such as the possibility for DPAs to request other DPAs to provide mutual assistance and to organise joint operations (Article 60(2) GDPR). If a DPA fails to respond within a month, the requesting DPA may adopt provisional measures on its territory in accordance with Article 55(1) GDPR (Article 61(8) GDPR), which would also require an urgent binding decision of the EDPB in accordance with Article 66(2) GDPR. Secondly, the DPAs could request the EDPB’s opinion concerning any ma er of general application or producing eﬀects in multiple Member States (Article 64(2) GDPR). is means that when a lead DPA, for instance, fails to investigate all possible data breaches of the GDPR in a meaningful way and the concerned DPAs wish to know if the EDPB agrees with the limited scope of the investigation, the concerned DPAs can ask for the EDPB’s nonbinding opinion on the ma er. When DPAs do not follow the EDPB’s opinion, this opinion could eventually lead to the adoption of a binding decision by the EDPB. us, via the adoption of opinions, and perhaps eventually binding decisions, the EDPB

e dispute resolution mechanism is a means for the EDPB to clarify ma ers: problematic, however, is the fact that the mechanism is o en only triggered at the end of the investigation and decision-making phases – this might be diﬀerent for disputes related to Articles 65(1)(b) and (c). At this stage, the EDPB is not able to remedy all ma ers brought forward by the concerned DPAs. When looking, for instance, at the rst Article 65 decision, the concerned DPAs submi ed objections

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with regard to the limited scope of the investigation conducted by the Irish Data Protection Commission, acting as lead DPA. e Irish DPC wrongly claimed that ‘it exercised its discretion […] to conne the scope of the inquiry to the consideration of two discrete issues’ and that it would ‘jeopardize the entirety of the inquiry and Article 60 process by exposing it to the risk of claims of procedural unfairness’. e EDPB’s response to this was limited to emphasising that the DPAs should seek consensus on the scope of the investigation prior to initiating the procedure formally, but it could not force the lead DPA to actually broaden the scope of the investigation (Mustert 2021). Furthermore, the EDPB formulated its decision regarding the proposed range of nes in a very broad way by stating that ‘greater weight should have been given to the nature and scope of the processing involved in the breach’. Following this decision, addressed to the national authorities, the Irish DPC indeed imposed a ne that was

higher than that originally proposed on Twi er International Company, in the amount of 450,000 euros. Nevertheless, this ne still amounts to only 0,75% of the maximum ne that the DPC could have imposed on Twi er International Company or 0,015% of Twi er’s global annual turnover, and it is questionable whether the EDPB had such a low ne in mind. Looking at the complexity and diﬃculties that come together with these tools, it is not surprising that DPAs look for other possibilities to push enforcement actions through. Article 58(5) GDPR , for instance, provides that ‘each Member State shall provide by law that its supervisory authority shall have the power to bring infringements of this Regulation to the a ention of the judicial authorities and where appropriate, to initiate or engage otherwise in legal proceedings, in order to enforce the provisions of this Regulation’.

It is not surprising that DPAs look for other possibilities to push enforcement actions through

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e Belgian DPA understands this provision as being applicable also in cases where the Belgian DPA is not the lead DPA. us, the Belgian DPA believes that it could circumvent the one-stop-shop mechanism by raising a GDPR infringement-action with a cross-border element directly before the Belgian court, instead of awaiting the enforcement actions of the lead DPA.

this may require the adoption of provisional measures by the national DPA and an urgent opinion or binding decision from the EDPB (Article 66(2) GDPR). In such cases, or when the EDPB adopts an opinion on the basis of a DPA’s request in accordance with Article 64(2) GDPR , the Court found that the concerned DPA should be able to take the necessary measures to ensure compliance with the rules on the protection of personal data laid down in the GDPR, which may include exercising the power conferred on it by Article 58(5) GDPR (Facebook Ireland and Others, C-645/19, paragraph 71).

Whether this is possible has been reviewed by the Court of Justice of the EU in the case Facebook Ireland and Others, C-645/19. Advocate General Bobek argued in his Opinion that ‘the DPAs are entitAll in all, the EDPB plays a large led to bring proceedings before role in ensuring coherent and a court of its Member State for consistent enforcement practian alleged infringement of the e EDPB plays a ces at national level. e EDPB GDPR with respect to crosscan adopt opinions or even binborder data processing […] large role in ensuring ding decisions addressed toprovided that it does so in sicoherent and consistent wards Member State authorituations and according to the ties, which offers many opportuprocedures set out in the enforcement practices nities to clarify ma ers. But on GDPR’ (See his Opinion in Faat national level the other hand, opinions are cebook Ireland and Others, Cnon-binding and it will be a 645/19). is was con rmed lengthy and cumbersome proby the Court of Justice, meacess to turn these opinions into ning that a DPA may only exerbinding decisions in accordance cise this power in one of the siwith Article 65(1)(C) GDPR. e effectiveness of tuations where the GDPR confers on that DPA a the dispute resolution mechanism, furthermore, competence to adopt a decision and that the coopevery much depends on the willingness of mainly the ration and consistency procedures laid down by the lead DPA to provide the EDPB and the other DPAs GDPR are respected (Facebook Ireland and Others, with sufficient information to ensure that all natioC-645/19). us, if there is a central point of enfornal and EU authorities can contribute in a meaningcement through the lead DPA according to the oneful way. Additionally, the EDPB’s rst decision stop-shop mechanism, which prevents concerned seems to be rather broad, leaving a lot of discretion DPAs from opening an administrative procedure, to the lead DPA. All these issues make it questionathese concerned DPAs should also not be able to ble how effective these tools are in pushing the nastart legal proceedings in a court on the same ma er. tional authorities to act. e Court added that this could also mean that bringing an action before a national court could not be ruled out if mutual assistance is not provided, since

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Although it will not be possible for DPAs to circumvent these issues by bringing GDPR infringementactions directly to the a ention of national judges when they are not the competent lead DPA, it is very important that the Court con rmed that the la er is possible when DPAs do not provide mutual assistance and an urgent opinion or binding decision is adopted. It remains to be seen, however, how

this works out in practice since it is only now that the EDPB is reviewing a request for an urgent binding decision for the very rst time. us, it will be highly relevant to study further what options there are to push DPAs to enforce the GDPR and whether, for instance, data subjects are able to challenge the DPAs’ actions or, very importantly, inactions before a court.

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The Internal Rule of Law of Big Technological Corporations: Why new Conceptions of Law are Needed to Deal with Big Tech Niels Kirst

e current competition law amework is incomplete to deal with digital behemoths. (2) Around the world, regulators and governments seek to address the amassed market dominance, power, and in uence of enormously big technological corporations (big tech). In the United States (US), a 2020 congressional report highlighted market abuse by these rms and ongoing lawsuits (see, for example, here, here, and here), with potentially structural remedies, will dominate headlines in the coming years. Across the Atlantic, the European Commission proposed an ambitious Digital Markets Act (DMA) to curb the power of big tech, while Member State’s regulators are already following on with their initiatives and investigations (see here, here, here, and here). However, the problem that the information society of the 21st century faces with big tech seems to be bigger than market abuse that can be remedied by competition law. erefore, this Long Read inquires if a new kind of law is needed to unburden competition law?

States increasingly face problems to address the sheer power of big tech that stretches to various policy areas. is can be seen in a wide array of phenomenon such as market dominance, election interference, media dominance, the emanation of hate speech, infringement of privacy rights, unfair working conditions, tax avoidance, and ultimately corporate power. Governments, regulators, and authorities cannot observe or supervise those companies’ compliance with conventional laws. erefore, it is time to think about new types and frameworks of laws to address the power of big tech. e starting point for this is the rule of law as a leading principle that allows the topic to be approached from a new perspective. When competition law is increasingly under a ack for including concepts such as fairness or privacy, it is time to think about new frameworks which could unburden competition law when dealing with digital behemoths. Such a framework for big tech could extricate competition law’s predicament when dealing with issues far beyond traditional antitrust models. is Long Read therefore, ap-

1. PhD Researcher at Dublin City University. 2. is is an excerpt of a longer working paper by the author. It was presented during the Young FIDE Seminar in May 2021. e author would like to thank the commentators of the FIDE Seminar for their valuable input, which tremendously augmented this Weekend Edition. Namely, Maria José Schmidt-Kessen, Marijn von der Sluis, Daniel Mândrescu, and Ali Al Khatib. e author would further thank Samuel Ego and Mark Dempsey for their comments, suggestions, and remarks, helping the author to bring his thoughts into a concise form.

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proaches the issue from a novel and original perspective by analysing the internal rule of law dimension of big tech to identify essential elements for new legal frameworks to deal with big tech.

e Rule of Law of State Institutions

Big tech’s intention to emulate governmental institutions makes perfect sense regarding their acquired power. Facebook has recently presented its currency, Big Tech Becoming States within States which could replace the nation State’s currency. However, Facebook seems to underestimate the responsibility that comes with providing a global cuScholars have argued that big tech functions more lirrency. Issuing a reliable, trustworthy, and stable cuke a State than a traditional corporation (3). Frank rrency for the world requires an independent board Pasquale notes that they “are no longer market parti(similar to a central bank board of governors), cipants. Rather, in their elds, they are market mawhich follows predetermined rukers, able to exert regulatory les which are not subject to any control over the terms on political or corporate in uence. which others can sell goods and A potential solution Facebook does not seem to proservices. Moreover, they aspire vide this for its envisioned digito displace more government could be to treat big tal currency Diem. role over time” (4). Following tech as State actors Pasquale’s argument, a potenFurther, Facebook aims to protial solution could be to treat vide a content oversight board labig tech as State actors. Seeing belled as the 'Facebook SupreFacebook, Alphabet (Google’s me Court’. While the Facebook Oversight Board parent company), Amazon, Apple, and the like as (FOB) is not a Supreme Court, it establishes a sepaState actors makes sense concerning their in uence rate legal system that functions under internal rules and power on the market, public opinion, and goset by the corporation without external oversight. In vernments. Robert Lee Hale describes governmenthe FOB's Charter, Facebook states that the ‘board tal power as prescribing what others have to do (make will not purport to enforce local law’. is statement the laws) and having the power to impose penalties for acknowledges the Oversight Board's position witnon-compliance with these rules (enforce the laws) hin a broader legal system of State laws. e rst (5). Following this de nition, big tech can be classidecisions of the FOB have been received widely and ed as governments. similarly to decisions of national Supreme Courts. us, it is essential to emphasise that we are witnessing the advent of a parallel adjudication system within a corporate entity. However, placing the responsibility of judicial decisions on internal bodies rivals

3. David Kirkpatrick, ‘ e Facebook Defect ’,April 2018, Time Magazine Quoting Facebook's CEO Mark Zuckerberg, saying that "In a lot of ways, Facebook is more like a government than a traditional company". 4. Frank Pasquale, ‘From Territorial to Functional Sovereignty: e Case of Amazon, Open Democracy, 5 January 2018. 5. Warren J. Samuels, Essays in the history of heterodox political economy (Macmillan, 1992), p. 184.

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Judicial decisions from internal bodies (like Facebook's Oversight Board) rival the prerogative of States, arguably leading to a lasting impact on how the rule of law is understood globally and creating a parallel rule of law paradigm

the prerogative of States in this area. Arguably, this will have a lasting impact on how the rule of law is understood globally. As a corollary, it creates parallel rule of law paradigms within States. Alphabet (Google), to name a diﬀerent example, is forcefully making an entrance into the health care sector by amassing citizens’ sensitive health data (see here). Scholars have pointed to the risk of sharing health data with private corporations (see here). By their collection, big tech gains a dominant position over citizens, typically a ributed to regulated health insurance providers. By placing this data in the hands of big tech, it remains unclear under which con dentiality standards it is managed and who ultimately has access to it. is depends on the internal rules of the respective corporations. ese examples are only the tip of the iceberg of the horizontal expansion of big tech into areas formerly under the supervision of State-regulated entities. e permanent suspension of the – then – US President from Twi er in January 2021 highlights the

multifaceted debate about big tech’s in uence on public opinion and debate. From a rule of law angle, it is questionable if big tech should exercise that kind of censorship in the name of democracy. Traditionally, censorship is exercised by authoritarian governments; in the future, the censors might be tech companies. e power of big tech has shi ed this threat towards private actors that do not necessarily comply internally with the rule of law. It is therefore imperative to inquire about the internal rules that big tech intends to be bound by.

An Internal Rule of Law Re ected in External Behaviour What follows om private corporations that assume State-like functions? e fact that the leading corporate entities in new technologies are entirely privately controlled raises questions about accountability, transparency, and the role of human rights in regulating these actors. Scholars have pointed to the horizontal application of human rights to regulate them (6). As a starting point for further discussion, it

6. Molly K. Land and Jay D. Aronson, New technologies for human rights law and practice by Jay Aronson, (Ed.), (Cambridge University Press, 2018).

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is helpful to think about big tech’s internal rule of law by analogy to their external rule of law adherence.

rule of law of big tech at this stage? Martin Krygier’s conceptualisation of the rule of law can provide guidance (8). He distinguishes between form and funcWhich concept of the rule of law is big tech following intion of the rule of law. While a legal system might foternally? Looking at big tech’s internal values and llow the form of the rule of law (having a wide array practices could be a good starting point for an empiof statutory rules), it might not ful l the function of rical study on this subject. Internal values can provithe rule of law (establishing the institutions which de guidance for employees and the management are following and applying the rules). First and foreand should be oriented towards the values of the somost, a hostility to arbitrary power is at the heart of ciety in which the company operates. However, thoKrygier’s rule of law conception. He argues that the se internal values must be re ected in external behafunctioning of the rule of law is connected to the unviour. Arguably, big tech’s interderlying values of a society. Loonal rule of law is re ected in its king at big tech, it seems that theGenuinely following the external behaviour towards dese entities recently commenced essence as well as the mocratically legitimised rules establishing the form of the rule and regulations. If a massive corof law by creating internal mele er of the law could be poration internally encourages chanisms. However, this is still a yardstick for measuring an ongoing process, and it will circumvention and the sidestepping of laws by using its in- big tech's internal rule of law be crucial if the function will fouence and power, it is hardly llow the form concerning big imaginable that such a corporatech’s internal rule of law. tion positively in uences the liberal democracy in which it operates (see here). Not only abiding by the What does this say about competition law’s ability to le er of the law but genuinely following its essence deal with big tech? Competition law’s scope is too nacould be a yardstick for measuring big tech's internal rrow to deal with the myriad challenges arising out rule of law. of big tech. An alternative remedy could be a big company law that targets explicitly issues arising with powerful big tech actors. However, such initiatives Conclusion need to be applied on a global scale. e G7’s recent initiative on global minimum taxation hints towards It appears that big tech has an inherent bias towards further actions in this direction. Ultimately, it refavouring its bene t in applying internal rules and mains to be seen if further global initiatives targeting avoiding complying with external ones (7). In conspeci c practices of big tech corporations will fotrast, recent eﬀorts of big tech in some areas illustrallow and if this could be a novel way to address the iste an early acknowledgement and the will to cure it sues highlighted in this essay. (see here, and here). What is the State of the internal

7. See for example the interesting work of the following scholars: Jonathan Tepper and Denise Hearn, e Myth of Capitalism: Monopolies and the Death of Competition ( John Wiley & Sons 2019); Tim Wu, e Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports 2018); and Ma Stoller, Goliath: How Monopolies Secretly Took Over e World (FIRST SIMO edn, Simon and Schuster 2019). 8. Martin Krygier, ‘ e Rule of Law: Legality, Teleology, Sociology’ in Gianluigi Palombella and Neil Walker (ed), Re-locating the Rule of Law (Hart Publishers, 2008).

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Bibliography: Kirkpatrick D., ‘The Facebook Defect’, Time Magazine, April 2018 Krygier M., ‘The Rule of Law: Legality, Teleology, Sociology’ in Walker, N., Palombella, G. (Eds.), Re-locating the Rule of Law (Hart Publishers, 2008) Land M.K, and Aronson J.D, New technologies for human rights law and practice (Aronson J. (Ed.) (Cambridge University Press, 2018) Pasquale F., ‘From Territorial to Functional Sovereignty: The Case of Amazon’, Open Democracy, 5 January 2018 Samuels W.J, Essays in the history of heterodox political economy (Macmillan, 1992) Stoller M., Goliath: How Monopolies Secretly Took Over The World (Simon and Schuster, 2019) Tepper J. and Hearn D., The Myth of Capitalism : Monopolies and the Death of Competition (John Wiley & Sons, 2019) Wu T., The Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports, 2018)

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News Highlights Week 21 to 25 June 2021

Conference on the Future of Europe plenary meets for the rst time Monday 21 June

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List on relaxing third-country travel restrictions to enter the EU updated by Council

e plenary of the Conference on the Future of Europe met in Strasbourg for the rst time on 19 June, following a citizens’ event that took place in Lisbon on 17 June.

Monday 21 June

Commission requests credit card companies to improve consumer information on subscriptions

Council paves way for revision of European Ombudsman’s statute

Monday 21 June

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e European Commission wrote to major credit card companies (Visa, Mastercard and American Express) requesting an improvement in the information their payment services provide when consumers make payments involving recurring subscription fees.

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e Council of the EU updated its previous Recommendation on the gradual li ing of travel restrictions to enter the EU from 1 July 2020 that have been imposed on residents of certain third countries.

Monday 21 June

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Consent for a revision of the European Ombudsman’s Statute was granted by the Council of the EU which will replace its current legal framework in order to bring it in line with the Lisbon Treaty.

Derogation to be removed so Irish language has full status in EU by 2022

Conclusions adopted by Council on Intellectual Property policy

Monday 21 June

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e European Commission adopted a report on the available language capacity in the EU institutions for the Irish language, nding that demand for translation of legislation and other documents into that language can be met.

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Conclusions on Intellectual Property policy, stressing its role in driving innovation, competitiveness, economic growth and sustainable development in the EU, were adopted by the Council.

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Deadline extended for Romania to put an end to its excessive de cit Monday 21 June

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EU sanctions against Russia for illegal annexation of Crimea and Sevastopol extended for another year

e Council of the EU addressed a Recommendation to Romania under the excessive de cit procedure, calling on it to end its excessive de cit situation by 2024 at the latest.

Monday 21 June

Council of Europe calls on Spanish Authorities to release from prison Catalan politicians convicted on account of unconstitutional independence a empt

Google subject to formal EU competition investigation for online advertising technology practices

Tuesday 22 June

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e Parliamentary Assembly of the Council of Europe adopted Resolution 2381 (2021)1 on 21 June, calling on the Spanish authorities to consider pardoning or releasing from prison the Catalan politicians who were part of an October 2017 independence movement.

GDPR extends to traﬃc oﬀences, and EU-incompatible legislation cannot be preserved until a nal constitutional court ruling Tuesday 22 June

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In B v Latvijas Republikas Saeima (C-439/19) the Grand Chamber of the Court of Justice clari ed the interpretation of the GDPR in the context of a relevant national authority’s disclosure of data concerning traﬃc oﬀences for the purposes of improving road safety.

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EU sanctions imposed as a result of the illegal annexation of Crimea and Sevastopol by Russia, seen as deliberately undermining Ukraine’s territorial integrity and destabilising the country, were extended until 23 June 2022.

Tuesday 22 June

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e European Commission opened a formal in-depth investigation into whether Google has violated EU competition rules by favouring its own online display advertising technology services in the ‘ad tech’ supply chain, to the detriment of competitors.

Further EU sanctions regarding Belarus: 86 more entries added to the list Tuesday 22 June

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More entries were added to the EU’s list of sanctions against Belarus for an escalation of serious human rights violations and the forced and unlawful landing of an intra-EU Ryanair ight on 23 May 2021 to arrest a journalist.

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ird States have legal standing before EU Courts, Court of Justice con rms Tuesday 22 June

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e Court of Justice clari ed in its Grand Chamber case Venezuela v Council (C-872/19 P) that third States have legal standing before EU courts pursuant to Article 263(4) TFEU to challenge EU restrictive measures that directly aﬀect that State.

ECtHR: Order to anonymise identity of rehabilitated oﬀender in media publications does not breach freedom of expression Tuesday 22 June

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e European Court of Human Rights ruled in Hurbain v. Belgium (application no. 57292/16) that a Belgian court’s order to anonymise an article in a newspaper to protect the identity of a former road traﬃc oﬀender did not breach the freedom of expression under Article 10 ECHR.

Informal deal between Council and European Parliament on access to Health Technology

Grand Chamber ruling clari es liability of online platforms when users illegally post protected content

Tuesday 22 June

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e EU’s co-legislators reached political agreement on a legislative proposal on Monday for joint cooperation on health technology assessment, which intends to enhance citizens’ access to medicinal products and technologies and to simplify submissions for producers.

e Grand Chamber of the Court of Justice ruled in Youtube and Cyando (C-682/18, C-683/18) that when users of online platforms illegally post copy-right protected content, those platforms are not themselves in principle making a communication under Directive 2001/29.

Memorandum of understanding signed between Mexico and ECDC on prevention and control of infectious diseases

Court of Justice clari es rights and conditions governing expulsions of EU citizens from Member States

Tuesday 22 June

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e European Centre for Disease Prevention and Control and the Ministry of Health of Mexico signed a Memorandum of Understanding with a view to enhancing collaboration between them in the eld of public health.

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e Court of Justice released its judgments in Grand Chamber cases Ordre des barreaux ancophones and germanophone e.a. (C-718/19) and Staatssecretaris van Justitie en Veiligheid (C-719/19) concerning EU citizens’ rights in the context of expulsion by the authorities of another Member State.

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Commission investigates German garments company on suspicion of EU law infringement through cartel Tuesday 22 June

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Unannounced inspections were carried out in Germany at the premises of a company manufacturing and distributing garments by the European Commission, due to preliminary concerns of EU competition infringements through a cartel and restrictive business practices.

EU and Kenya launch strategic dialogue Wednesday 23 June

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ECtHR: Spanish courts breached freedom of expression by convicting a Basque separatist politician for his speech at a public ceremony in tribute to a former terrorist leader Wednesday 23 June

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e European Court of Human Rights ruled in Erkizia Almandoz v. Spain (application no. 5869/17) on Tuesday that Spanish courts breached the freedom of expression (Article 10 ECHR) by convicting a Basque separatist politician for publicly defending terrorism.

Council adopts conclusions on EU’s role as a global maritime security provider

e European Union and the Republic of Kenya agreed to launch a strategic dialogue and to strengthen the partnership between the EU and the East African Community (EAC) region.

Wednesday 23 June

Certi cate model on compliance with organic production rules: Commission Delegated Regulation

Ombudsman nds no maladministration in OLAF’s refusal to give public access to call for tenders

Wednesday 23 June

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Oﬃcial publication was made of Commission Delegated Regulation 2021/1006 concerning the model of the certi cate a esting compliance with the rules on organic production and labelling. e new model of the certi cate replaces the previous one in Regulation 2018/848.

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e Council of the EU adopted conclusions on Tuesday on the EU’s intention to step up its role as a global maritime security provider, describing maritime security as ‘a key priority’ for both the EU and Member States ‘for the protection of their strategic interests’.

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e European Ombudsman decided in case 193/2021/AMF that OLAF’s refusal to grant public access to a call for tenders for an EU-funded project, which had resulted in an investigation, did not constitute maladministration.

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SRB policy published concerning notication of inability to include bail-in recognition clauses in contracts

EU data protection agencies’ concerns on various aspects of the proposed EU Arti cial Intelligence Law

Wednesday 23 June

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e Single Resolution Board made public a new policy on how banks should notify authorities when bail-in recognition clauses cannot be added to contracts governed by the law of a third country.

e European Data Protection Board and European Data Protection Supervisor adopted a joint opinion on the legislative proposal for an Arti cial Intelligence Regulation, expressing concerns with aspects of the content, scope, and actors who would have competence.

EU-US: Justice and Home Aﬀairs Meeting

AG Szpunar’s Opinion on advertisers unclearly and unfairly nancing editorial content and the Unfair Terms Directive

Wednesday 23 June

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EU and US representatives met on 22 June 2021 to discuss cooperation on Justice and Home Aﬀairs, which was described in the resulting statement as remaining ‘crucial’, and recording a mutual commitment to uphold democracy and the respect for the rule of law.

EBA publishes report on treatment of branches of third country credit institutions ursday 24 June

ursday 24 June

In Peek & Cloppenburg KG (C-371/20) Advocate General Szpunar’s view is that under the Unfair B2C Practices Directive 2005/29, promotional editorial content is ‘paid for’ by the trader when the la er has given the media operator a bene t for consideration, and there is a ‘de nite link’ between the bene t and promotion.

Commission extends transitional regime for capital requirements for nonEU central counterparties ursday 24 June

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e European Banking Authority published a Report on the treatment of incoming third country branches of credit institutions under the national law of Member States, and which sets out 14 high-level policy recommendations aimed at harmonising the relevant EU law.

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e European Commission approved an additional year of extension of the current transitional regime for capital requirements for non-EU central counterparties.

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Northern Ireland rules on access to social assistance bene ts by EU citizens might be indirectly discriminatory: AG Richard de la Tour’s Opinion ursday 24 June

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AG Hogan’s Opinion clari es conditions for ful lling the requirements for a free allocation of emission allowances ursday 24 June

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Advocate General Richard de la Tour gave advice in e Department for Communities in Northern Ireland (C-709/20) on access to social assistance bene ts and non-discrimination on grounds of nationality under Article 18 TFEU, and Article 24 of the Citizens’ Directive 2004/38.

Advocate General Hogan, in his Opinion in Aurubis (C271/20), considers that the requirements for a free allocation of emission allowances on the basis of a ‘fuel benchmark subinstallation’ are ful lled where copper concentrate is used both as a source of raw material and as a combustible material to generate heat.

Court of Justice clari es relationship between national provisions on successive xed-term contracts and subrogation of staﬀ with EU law

Infrastructure managers competent to adopt procedural rules for infrastructure capacity requests: Court of Justice’s judgment

ursday 24 June

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e Court of Justice provided guidance in Obras y Servicios Públicos and Acciona Agua (C-550/19) on the compatibility with EU law of Spanish law and a Framework Agreement allowing for the successive conclusion of xed-term contracts in the construction sector.

e Court of Justice clari ed in DB Netz (C-12/20) that infrastructure managers are the competent authority under the European Rail Network for Competitive Freight Regulation and the Single European Railway Area Directive to establish the procedure applicable to requests for infrastructure capacity at a one-stop shop.

AG Hogan: Member States may not limit the areas for operators to carry out E&P activities

New rules for banks and investment rms to enter into force

ursday 24 June

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Advocate General Hogan advised the Court of Justice in Regione Puglia (C-110/20) that Member States are not compelled to limit the extent of the areas where a speci c operator is entitled to carry out the prospection, exploration and production of hydrocarbons.

ursday 24 June

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Several new important rules applicable to banks and investment rms will enter into force in the next few days: the Investment Firm Directive, Investment Firm Regulation and the Capital Requirements Regulation II.

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AG Richard de la Tour: inboxadvertising requires prior consent and may constitute spam ursday 24 June

EU proposes broad reform of World Customs Organization in favour of multilateralism ursday 24 June

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Advocate General Richard de la Tour’s Opinion in StWL Städtische Werke Lauf a.d. Pegnitz (C-102/20) advises the Court of Justice to rule that inbox-advertising is only allowed in respect of subscribers who have given their prior consent and that it might constitute spam.

rough a series of recommendations, the EU presented an initiative for broad reform of the World Customs Organization – which it notes has not been reformed comprehensively for 65 years – to strengthen its position as a ‘key multilateral institution’ in international trade.

More targeted economic EU sanctions concerning Belarus imposed

European Council publishes conclusions on COVID-19 and migration

Friday 25 June

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e Council of the EU announced that more sanctions, of an economic nature, would be imposed against the Belarusian regime, in addition to those already in place to address serious human rights violations and an unlawfully forced landing of an intra-EU ight in Belarus.

e European Council published conclusions on the Digital COVID Certi cate and Council’s intra-EU travel recommendations; and improving migration-cooperation with countries of origins and transit, following its meeting in Brussels.

European Data Protection Supervisor’s views on data protection for digital nance technologies

LIBOR phase-out: Market participants strongly encouraged to cease using all LIBOR se ings

Friday 25 June

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e European Data Protection Supervisor’s Opinion on the September 2020 legislative proposal for a Regulation on Markets in Crypto-assets was published on the need for data protection and accountability to be ensured in the use of technologies used for crypto-asset-transactions.

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e European Commission, the European Central Bank, the European Banking Authority and the European Securities and Markets Authority issued a statement strongly encouraging market participants to reduce their exposure to LIBOR and not wait for the European Commission to designate a replacement under Article 23b of Regulation 2016/1011.

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Notice published on EU trade defence legislation and measures in Northern Ireland

New regulation on instrument for nancial support for customs support equipment

Friday 25 June

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A Notice (2021/C 248/03) on the continued application of the EU’s trade defence legislation and measures in Northern Ireland from 1 January 2021 was published.

e Council of the EU and the European Parliament signed the Regulation that establishes the instrument for nancial support for customs control equipment.

Insights, Analyses & Op-Eds Is It Really Over? e Airbus/Boeing Dispute and its Implications for Transatlantic Trade Cooperation

A mild sigh of relief for online platforms but uncertainty looms a er CJEU judgment in YouTube/Cyando

by Trajan Shipley

by Bernd Justin Jü e

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Insight into the history and importance of the Airbus/Boeing dispute, the EU-US understanding now reached and the wider implications for transatlantic trade cooperation.

Op-Ed on the Court of Justice’s ruling in YouTube and Cyando (Joined Cases C-682/18 and C-683/18): as much about Article 17 of the Copyright in the Digital Single Market Directive as it was about the ‘old’ law under the Information Society Directive and the E-Commerce Directive.

e proposed Digital Services Act should focus more on consumer protection

GDPR Limits to Public Disclosure and Re-Use of Penalty Points on Road Traﬃc Oﬀences?

by Agustín Reyna

by Niovi Vavoula

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Op-Ed highlighting three key messages of the Grand Chamber’s ruling in B (C-439/19) on the interpretation of the GDPR: its expansive scope, autonomous EU law concepts and application of the Engel criteria to a case involving road traﬃc oﬀences.

Op-Ed on the shortcomings of the proposed Digital Services Act in bridging the gap between regulation of intermediaries and consumer protection in the platform economy.

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ird States have legal standing before EU courts: What implications for restrictive measures control?

Expelling EU citizens: adding pieces to the puzzle of protection by Sandra Mantu

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by Elisabet Ruiz Cairó

Analysis of two Grand Chamber judgments (Ordre des barreaux ancophones et germanophone (C-718/19) and FS v Staatssecretaris van Justitie en Veiligheid (C-719/19)) that detail the protection enjoyed by EU citizens in case of expulsion from a host EU Member State: an issue that has not been litigated signi cantly.

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Analysis of the Court of Justice’s ruling in Venezuela v Council (C-872/19 P) declaring Venezuela has standing to challenge restrictive measures, as making two major contributions to EU law by clarifying the wording of Article 263(4) TFEU and the interpretation of the CFSP.

AG Pitruzzella’s Opinion on the Agreement with Armenia and the choice of legal basis in EU External Relations by Andrés Delgado

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Analysis of the Advocate General’s views on how to apply the Court’s centre of gravity test in a choice-of-legal-basis case, the Kazakhstan judgment (C-244/17).

Library - Book Review

By Diane Fromage READ ON EU LAW LIVE

Chiara Zilioli and Karl-Philipp Wojcik

Judicial Review in the European Banking Union Review of a book that is particularly useful and ambitious, allowing navigation and understanding of the abundant and complex case law, the complex structure and functioning of the EBU, and because it addresses ma ers that have been constantly evolving since the creation of the EBU.