Weekend Edition Nº65 by eulawlive

Nº65

JULY 2

2021

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MARCUS GUSTAFSSON

THE EUROPEAN COMMISSION’S PROPOSAL FOR A NEW REGULATORY TOOLBOX TO TACKLE FOREIGN SUBSIDIES

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Nº65 · JULY 2, 2021

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The European Commission’s Proposal for a new Regulatory Toolbox to tackle Foreign Subsidies Marcus Gustafsson

On 5 May 2021, the European Commission published its proposal for a new Regulation to address distortions in the internal market caused by foreign subsidies. e proposal builds upon the options put forward by the Commission in its White Paper published last year. e aim is to ll a regulatory gap whereby subsidies granted by EU Member States are subject to extensive scrutiny under the EU State aid framework, while subsidies granted by third countries are not. e Regulation allows the Commission to initiate ex-oﬃcio investigations of any foreign subsidy deemed to have a potentially distortive eﬀect on the internal market, and provides for pre-noti cation obligations of foreign subsidies in the areas of corporate acquisitions and public procurement bids.

1. Why a New Instrument? So called ‘trade defence’ or ‘trade remedies’ instruments have a long pedigree under international trade rules. ese instruments allow importing countries to respond to surges in imports with temporary increases in customs duties to provide relief for the domestic industry. As international trade rules were formalised and conventional customs duties were lowered across the board under the predecessor agreement to the WTO (2), countries wanted to retain these exibilities. What eventually crystallised were detailed codes for how to apply temporary anti-dumping, anti-subsidy and safeguard tariffs when certain conditions were met. It has been suggested that such trade remedies rules can serve as a useful means to allow diverse and differently structured economies to co-exist within the same global trading system. In other words, trade remedies can act as an ‘interface’ to smooth over frictions between differently regulated economies and allow rules-based trade to continue despite institutional differences and different ideas about what constitutes free and fair trade.

is Long Read will rst discuss the need for a new instrument of this sort and brie y situate it in the context of other trade remedy instruments. It will then analyse the Regulation’s de nition of ‘foreign subsidies’, and compare this to other de nitions under EU and WTO law. ird, it will provide a brief overview of each of the three investigatory mechanisms proposed. Fourth, it will further explore some of the common provisions, and will conclude with some nal remarks.

is perspective can help explain why, having already established a European framework for State

1. Member of the Legal Service, European Commission. e information and views set out in this Long Read are those of the author and do not necessarily reect the oﬃcial opinion of the European Commission. 2. e General Agreement on Tariﬀs and Trade (GA ) 1947.

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e aim of the new Regulation is to extend the level-playing eld for European companies into areas where State-sponsored corporate activity is increasingly common

commonplace. In doing so, the proposal will help mitigate the frictions arising from the interaction of diﬀerent economic regulatory systems and countries with diﬀerent policy preferences.

aid control, the EU strongly advocated the establishment of similar rules for tackling international subsidies for goods under the WTO Agreement on Subsidies and Countervailing Measures (SCM Agreement) in 1995. However, the SCM Agreement does not cover trade in services, and 25 years a er the founding of the WTO, globalisation has continued apace and further integrated the world’s largest economies. Economic regulatory diversity has not converged to the extent some had hoped, and certain countries maintain very diﬀerent regulatory philosophies. Although the Commission’s proposal notes that extensive research on the topic remains scarce, preliminary research carried out during the legislative process and impact assessment, as well as reports from think tanks and Member States, suggest that subsidised public tenders and corporate acquisitions have real and distortive eﬀects on the internal market. e aim of the new Regulation is thus to extend the level playing eld for European companies into domains where Statesponsored corporate activity is becoming ever more

It is also the EU’s wish to develop multilateral rules, and efforts in this regard are ongoing. Unbridled State subsidisation and intervention is a bar to innovation and efficient capital allocation, and can lead to wasteful subsidy races. For this reason, Article XV of the General Agreement on Trade in Services (GATS) in fact recognises the distortive effect of subsidies on trade in services and contains a mandate to negotiate multilateral rules. However, this mandate remains unrealised. WTO Members have also been unwilling to engage with the EU’s broader calls for industrial subsidies reform. e introduction of the present proposal may spur such action. Indeed, the history of trade remedy negotiations shows that change at the global level has o en been catalysed by domestic legal innovations.

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Moreover, the proposed Regulation does not apply to all types of subsidies, but only those which are ‘limited, in law or in fact, to an individual undertaking or industry or to several undertakings or industries’ (Article 2.1). is requirement is also an important element under international trade rules (requiring actionable subsidies to be ‘speci c’), as well as under State aid law (State aid must be ‘selective’).

2. What are ‘Foreign Subsidies’? To understand the scope of the proposed Regulation, we must rst understand how the Regulation de nes ‘foreign subsidies’. Under the Regulation, a foreign subsidy is de ned as a ‘ nancial contribution’ provided by a third country, which confers a ‘bene t’ to an undertaking active on the internal market (Article 2.1). Financial contributions include three main types of schemes: the transfer of funds or liabilities (such as capital injections, grants, loans or guarantees); the ‘foregoing of revenue that is otherwise due’ (for example tax deductions); and the purchases or provision of goods and services (Article 2.2(a)).

In addition to having to be speci c, foreign subsidies have to be ‘distortive’. A distortion is ‘deemed to exist where a foreign subsidy is liable to improve the competitive position of the undertaking’ and ‘it actually or potentially negatively aﬀects competition on the internal market’ (Article 3(1)). Importantly, a foreign subsidy of less than ve million euros over the past three years is ‘unlikely’ to be deemed distortive (Article 3(2)). Furthermore, there is a list of indicators to guide this assessment, including the amount and nature of the subsidy; the situation and level of economic activity of the undertaking and the markets concerned; as well as the purpose, conditions and use of the foreign subsidy. Foreign subsidies deemed to be particularly distortive include those granted to ailing undertakings, unlimited guarantees, and those directly facilitating a concentration or the winning of a public tender (Article 4).

is de nition is similar to, and uses many of the same terms as, the de nition of subsidy in Article 3 of the EU Basic Anti-Subsidy Regulation 2016/1037 (BASR) and Article 1.1 of the SCM Agreement. ese rules enable the EU to impose ‘countervailing duties’ on imported goods found to have been subsidised by third countries. Similar to those rules, the ‘ nancial contribution’ must be distinguished from the ‘subsidy’ itself. e actual subsidy is equivalent to the bene t received by the recipient. For instance, a State-sponsored loan of one million euros would be a nancial contribution, but the actual ‘foreign subsidy’ would be the diﬀerence between the State-sponsored interest rate and the rate otherwise available on the market (3). ese concepts are also present under State aid law, which de nes State aid as a ‘transfer of State resources’ which confer an ‘advantage’ (4).

e concept of distortion is similar to that found in Article 107(1) TFEU and in State aid law practice (5). ere is no requirement to show distortion in the BASR or SCM Agreement. Instead, the investigating authority examines whether the domestic industry has suﬀered ‘material injury’, by examining a number of performance factors. e injury suﬀered

3. ere is no provision explicitly addressing the calculation of the bene t, but recital (10) of the proposed Regulation suggests that it will be compared with market benchmarks. 4. Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union, OJ L262/1, (‘Notice on State aid’), paras. 51 and 66. 5. Notice on State aid, para. 187.

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e de nition of a foreign subsidy closely adheres to existing concepts under both international trade and State aid law

tailed legal provisions, comparable to those in the BASR. Nevertheless, as with competition and State aid rules, it can be expected that the Commission will develop and publish further detailed practice and guidance.

must then be linked to the increase in subsidised imports. By focusing on tackling ‘distortive subsidisation’ rather than ‘injurious subsidisation’, the proposal thus more closely resembles State aid law. Finally, it should be noted that not only direct but also indirect foreign subsidies are covered. ese include those provided through ‘any private entity whose actions can be a ributed to the third country, taking into account all relevant circumstances’ (Article 2.1(b)(iii)). is notion of a ribution, acting as a bar on State circumvention of the rules via private entities, is present in both international trade and State aid law. Some of the detailed case law in the la er eld (6) is likely to be taken into account when establishing what a ribution entails in this context.

3. A

ree-pronged Approach

As noted, the proposed Regulation introduces three diﬀerent legal instruments. In accordance with feedback received in response to the White Paper, the Commission will be the sole investigatory authority. is makes sense for reasons of consistent application and interpretation, and due to the relatively high thresholds for action, as further discussed below. e rst instrument has the broadest scope, and allows the Commission to investigate ex oﬃcio whether a nancial contribution constitutes a foreign subsidy distorting the internal market (Articles 7 to 9). e Commission will rst open a ‘preliminary re-

Overall, the de nition of a foreign subsidy thus closely adheres to existing concepts under both international trade and State aid law. Compared to Article 107 TFEU, the Regulation oﬀers much more de-

6. Notice on State aid, paras. 39-43. Article 3(1)(a)(iv) BASR instead uses the concept of ‘entrusts or directs’. It has so far only been interpreted by the EU Courts in Case T-300/16, Jindal Saw v Commissioni, EU:T:2019:235, paras. 96-143.

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e second instrument is a pre-noti cation obligation of any foreign subsidies received by the undertakings involved in a ‘concentration’, namely a corporate merger, acquisition or joint venture (Article 18). is will add an additional layer of noti cation obligations to those already established in the EU Merger Regulation. Indeed, the timing of noti cations, the de nition of corporate control, the calculation of turnover and the duration of investigations (Articles 19-21 and 23) are closely modelled on the Merger Regulation. Furthermore, Article 18(3)(a) speci es that the acquired target or at least one of the merging entities must have an annual turnover of 500 million euros on the EU market. is will generally be more demanding than the threshold requirements under Article 1 of the EU Merger Regulation, which may be as low as a combined turnover of 100 million euros. ere is also a requirement that there must have been aggregate nancial contributions of at least 50 million euros in the past three years. is would thus include not only grants but also state-backed loans and capital injections. Such transactions should in most cases be readily identiable from the companies’ nancial statements. Ascertaining and notifying such contributions should thus not add much administrative burden to the standard merger disclosures already in place.

view’, during which it may request additional ‘necessary information’ (7) and conduct inspections inside and outside the EU. If there are ‘suﬃcient indications’ that a distortive foreign subsidy has been granted, the Commission may adopt a decision to initiate an in-depth investigation through the publication of a notice in the Oﬃcial Journal, allowing the undertakings concerned, Member States and other countries to express their views. During the indepth investigation, the Commission shall further assess the identi ed foreign subsidies, and may undertake further inspections and make additional information requests. Where the Commission nds that a foreign subsidy distorts the internal market, it may impose redressive measures, including accepting commitments from the undertakings concerned, as under EU competition law. e types of remedies are set out in detail in Article 6 of the Regulation. ese include typical competition law remedies such as divestments, licensing of technology, providing access to infrastructure, dissolving mergers, publishing R&D results, or even ‘reducing capacity or market presence’. Although not a closed list, there is no equivalent such list, for example under the EU Merger Regulation 139/2004. Moreover, the foreign subsidy may be repaid, which is analogous to the remedy provided under State aid law (recovery of the incompatible aid).

e subsequent investigation is structured in the same way as under the rst instrument, with the exception of time limits mirroring those in EU merger review proceedings, namely 25 and 90 working days respectively for the preliminary and in-depth investigations (Articles 23 and 24).

However, Article 5 provides for a crucial ‘balancing’ test, allowing the Commission to ‘where warranted, balance the negative eﬀects of a foreign subsidy […] with positive eﬀects on the development of the relevant economic activity’. is balancing must be taken into account when redressive measures are imposed or commitments are accepted.

e third instrument requires undertakings participating in a public procurement procedure to notify the contracting authority or entity of all foreign -

7. Article 11(1). See also Case C-61/16 P, EBMA v Giant, EU:C:2017:968, paras. 45-58.

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proposal gives a nod to these obligations in Article nancial contributions received in the past three 31(7) by stating that the principles of proportionayears (Article 28(1)). e obligation only applies to lity, non-discrimination, equal treatment, and transprocurements whose estimated value exceed 250 parency must be observed with regards to all undermillion euros (Article 27(2)), but the Commission takings. Moreover, as the proposal notes, the EU Pumay also, if it suspects that an undertaking may have blic Procurement Directives already allow abnorbene ted from foreign subsides, request an undermally low oﬀers if it can be estataking to make a noti cablished that the bidder receition in procurements proe two-step investigatory ved unlawful State aid (8). Focesses below that threshold (Article 28(5)). Undertaframework is similar to that reign subsidies can also be taken into account, but only if it kings that fail to submit such already found in merger, can be demonstrated that the information cannot be awarforeign subsidy impedes the ded the contract. is obliantitrust and State aid viability of the oﬀer and the gation also extends to the investigations bidder’s capacity to deliver. main subcontractors and main suppliers (Article 28(2)).

4. Common Provisions

Any noti cation shall be transferred to the Commission and the same investigatory procedures as under the rst instrument will apply (Articles 28(4) and 29). However, the preliminary review must generally be concluded within 60 days and an indepth investigation within 200 days of receipt of the noti cation. If the undertaking is found to have bene ted from distortive foreign subsidies, and any commitments offered are deemed insufficient, the undertaking cannot be awarded the contract (Article 30). e Commission cannot impose any redressive measures, but the Regulation does not bar the initiation of an ex officio investigation under the rst instrument to allow for such a possibility (Article 33).

e two-step investigatory framework described above is similar to that already found in merger, antitrust and State aid investigations. e same is true for the sanctions available in case an undertaking ‘intentionally or negligently’ supplies incorrect, incomplete or misleading information, or refuses to submit to inspections within the EU (Article 15(1)). is can lead to nes of up to 1% of aggregate annual turnover, or ‘periodic penalty payments’ of up to 5% of daily aggregate turnover. Failure to comply with agreed commitments or redressive measures can lead to nes of up to 10% of aggregate turnover.

As a signatory of the WTO’s Revised Government Procurement Agreement, the European Union has certain obligations toward other signatories. e

In addition, the provision of incorrect, incomplete or misleading information, also allows the Commission to disregard or supplement the information provided with ‘facts available’ (Article 14). e usage of

8. Proposal, p. 52, referring to Directives 2014/24, and 2014/25.

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dies (Article 34). is can be compared to the ‘country reports’ investigating the presence of ‘signicant distortions’ which the Commission may issue under the EU’s recently revised anti-dumping methodology.

facts available may lead to a less favourable result, and any undertaking that fails to provide information allowing the Commission to determine whether a nancial contribution has conferred a bene t, may be deemed to have received a bene t. is notion of ‘facts available’ is imported from trade remedies legislation, which lacks pecuniary sanctions and where participation in investigations is voluntary. Indeed, whereas the nes and periodic payments only concern undertakings and inspections ‘within the Union’, facts available may be used in relation to inspections outside the EU and also apply to third countries. Furthermore, the use of facts available does not require demonstrating intentional or negligent conduct. ‘Facts available’ thus serve as a necessary complement to the ability to levy nes in light of the international dimension of foreign subsidy-investigations.

5. Conclusion: A Hybrid Model e new proposed Regulation is closely modelled on the existing EU State aid and competition law regimes, but with interesting incorporations of trade remedy-concepts. Notably, these additions respond to the international aspects of the investigation and are especially relevant for the ex oﬃcio, ex-post investigations under the rst instrument. erefore, although DG Competition has led the formulation of the proposal and is the department with the most relevant experience and know-how regarding its implementation and how it can complement existing merger and State aid reviews, there will also be important lessons to draw from the trade remedycontext. In particular, this will concern the conduct of consultations with foreign governments and onsite investigations outside the EU. Moreover, it will be important to ensure that EU practice develops in line with WTO rules and that there is no discrimination against foreign rms. Given that under EU State aid law, the standard remedy is for States to recover any aid deemed unlawful, it will be important to calibrate the remedies under the proposed Regulation to ensure foreign rms receive no less favourable treatment.

Another innovation which recalls trade remedies law is the ability to take ‘interim measures’ where ‘there is a serious risk of substantial and irreparable damage to competition on the internal market’ (Article 10). In contrast to ‘provisional measures’ under the BASR, however, this language imposes a high legal bar on such measures. Indeed, it is diﬃcult at this stage to imagine how an expedited investigation under the normal procedures will not be able to address most threats to competition on the internal market. Nevertheless, given the potential for sudden and unforeseen market developments, such as during the outbreak of COVID-19, the ability to respond rapidly to exceptional market situations is welcome.

Nevertheless, it is clear that EU rms face a competitive disadvantage under current rules. e increasingly rapid globalisation in all sectors of the economy over the last two decades have made the task of redressing that imbalance ever more acute.

Finally, an interesting innovation is the Commission’s ability to conduct market investigations and issue reports concerning sectors which it has a ‘reasonable suspicion’ are bene ting from foreign subsi-

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News Highlights Week 28 June to 2 July 2021

Lack of independence of the Polish Supreme Court: action for failure to ful l obligations

General Court action against Commission for not granting access to documents published

Monday 28 June

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e European Commission brought an action against Poland before the Court of Justice (C-204/21) for its alleged failure to ful l obligations concerning the lack of independence of the Disciplinary Chamber of the Polish Supreme Court.

An action for damages against the Commission over its unlawful conduct in the non-disclosure of certain documents currently pending before the General Court (Basaglia v Commission, T-257/21) was published.

Intra-EU Agency Cooperation: criminal justice ma ers and their human rights dimensions

Commission extends transitional regime for capital requirements for nonEU central counterparties

Monday 28 June

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Eurojust announced it aims to cooperate more closely with the Fundamental Rights Agency and strengthen the F Regulation 168/2007, potentially in the criminal justice areas of victims’ rights, facial recognition technology, detention, and access to lawyers’.

e Commission adopted a one-year extension of the transitional regime last week concerning the capital requirements that EU banks and investment rms must comply with when dealing with non-EU central counterparties.

Ryanair’s request to annul Commission State aid Decision concerning Italian airlines: action published

Negotiation Progress for Environmental Reform of the EU’s Common Agricultural Policy

Monday 28 June

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e General Court will hear an action for annulment in Ryanair v Commission (T-268-21) against the Commission’s Decision to approve State aid for airlines with an Italian operating licence in light of COVID-19 (SA.59029).

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Environmental reform of the EU’s common agricultural policy through three EU Regulations for 2023-2027 was provisionally agreed by the Portuguese Presidency of the Council and the European Parliament.

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European Climate Law: Council’s position at rst reading Monday 28 June

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General Court to examine whether merger referral by the Autorité de la Concurrence to the Commission was lawful

e Council of the EU adopted its position at rst reading for the EU’s rst ever Climate Regulation aiming at a climateneutral EU by 2050 and a reduction of net greenhouse gas emissions by at least 55% by 2030 (compared to 1990).

Monday 28 June

Transfers of personal data between EU and UK oﬃcially authorised by European Commission

COVID-19 and Flight Cancellations: Calls for be er consumer protection in the EU

Monday 28 June

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Action T-227/21 was published, in which the General Court will examine the lawfulness of the Commission’s acceptance of a referral request by the French Autorité de la Concurrence to examine the merger of Illumina, Inc. and G IL, Inc., under the EU Merger Regulation.

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e European Commission adopted two adequacy decisions for the UK, which recognise that there is an ‘essentially equivalent level of’ data protection in the UK to that guaranteed under EU law.

In response to a huge number of consumer complaints and a survey, airlines were told by the European Commission and national consumer authorities that they should improve how they deal with ight cancellations occurring as a result of COVID-19 related measures.

Commission authorises French regulatory mechanism for natural gas stockage

Provisional agreement reached to amend Motor Vehicles Insurance Directive

Monday 28 June

Tuesday 29 June

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Following an in-depth investigation, the European Commission authorised a French regulatory mechanism for natural gas stockage a er con rming it is in line with EU State aid rules.

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e Council’s Permanent Representatives Commi ee (Coreper) endorsed the political agreement reached by negotiators of the European Parliament and the Council to amend the Motor Vehicles Insurance Directive (2009/103).

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Measures on railway infrastructure market: Commission Delegated Regulation

European Court of Auditors calls for be er framework to combat money laundering

Tuesday 29 June

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A new measure was oﬃcially published (Commission Delegated Regulation 2021/1061) establishing measures for a sustainable rail market in view of the COVID-19 outbreak.

e European Court of Auditors published a special report that concludes that action at a EU-level to combat money laundering and terrorism nancing has signi cant institutional weaknesses, and that the EU’s oversight framework is incoherent and poorly coordinated.

Commission adopts new strategic framework on health and safety at work

Provisional agreement on new directive concerning selling of nonperforming loans to third parties

Tuesday 29 June

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e European Commission adopted a new strategic framework on health and safety at work for the 2021-2027 period. It sets out the key priorities and actions in the eld of workers’ health and safety over the coming years in the context of the post-pandemic world.

Tuesday 29 June

Honey Bees and Pesticides: Agriculture Ministers agree the need for an EU speci c goal

ECtHR: Polish transitional rules allowing unjusti ed and non-reviewable removal by the Minister of Justice of vicepresidents of a court breaches human rights

Tuesday 29 June

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Agriculture Ministers agreed on the need for one speci c EUprotection goal and generally greater EU ambitions to protect honey bees from pesticides. is was proposed in the form of a threshold for an acceptable reduction in honeybee colony size due to pesticides.

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EU ambassadors endorsed on behalf of the Council of the EU a provisional agreement reached between the European Parliament and the Council Presidency concerning a new directive standardising rules for credit servicers and acquirers of non-performing loans provided by credit institutions.

Tuesday 29 June

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e European Court of Human Rights (ECtHR) ruled in Broda and Bojara v. Poland (applications no. 26691/18 and 27367/18) that the Polish rules that allow the Minister of Justice to remove from oﬃce heads of courts with no justi cation and without eﬀective mechanisms of review is contrary to the right of access to a court (Article 6(1) ECHR).

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Council and Parliament agree to upgrade European Asylum Support Oﬃce to an EU agency Tuesday 29 June

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2020 Annual Burden Survey published by Commission Tuesday 29 June

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e European Parliament and the Council of the EU reached an agreement to transform the European Asylum Support Oﬃce into an EU agency, which will be known as the European Union Agency of Asylum.

e European Commission published the Annual Burden Survey for the year 2020. e report consists of an overview of the EU’s measures aimed at simplifying its legislation in diﬀerent areas, including nancial services, taxation, customs, transport and environment, and more.

Commission extends investigation on proposed public support for Hungarian Samsung plant

COVID-19 related disinformation measures of online platforms monitored by the Commission

Tuesday 29 June

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e European Commission approved the extension of the ongoing State aid investigation relating to the proposed public support for a Samsung plant located in Hungary.

e most recent reports of online platforms that are signatories to a voluntary EU Code of Practice on Disinformation, on their progress in tackling disinformation, were published.

Measures published by Commission on safe reopening of cultural and creative activities

General Court rules that Commission is not liable for preventing Banca delle Merche’s recapitalisation

Wednesday 30 June

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e European Commission published guidelines to inform a safe resumption of activities in the cultural and creative sectors across Member States. ey intend to provide a coordinated approach in the light of particular national, regional and local conditions across the EU.

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e General Court dismissed the action in Fondazione Cassa di Risparmio di Pesaro and Others v Commission (T-635/19) seeking a declaration that the Commission is liable for having allegedly prevented the recapitalisation of Banca delle Merche by giving unlawful instructions to Italian national authorities.

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Private Companies’ Data on Tourism in the EU: Commission publishes statistics Wednesday 30 June

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Further to an agreement with four online platforms – Airbnb, Booking, Expedia Group and Tripadvisor – the Commission published the rst statistics compiled by Eurostat on short stays organised through those private companies.

EFTA Court clari es when States can impose mobility limitations on people receiving unemployment bene ts Wednesday 30 June

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e EFTA Court con rmed in O v Arbeids- og velferdsdirektoratet (Case E-13/20) and Criminal Proceedings against P (Case E-15/20) that the condition to remain in Norway to receive unemployment bene ts can be compatible with the EEA Agreement and Social Security Coordination Regulation 883/2004.

Infringements of EU air passenger rights during COVID-19 pandemic Wednesday 30 June

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e European Court of Auditors stated in a special report that air passengers’ rights as protected under EU law have not been protected during the COVID-19 pandemic due to related measures such as cancelled ights, and made recommendations.

New Principal Adviser in DG FISMA appointed by Commission Wednesday 30 June

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e European Commission appointed Elisabe a Siracusa as its new Principal Adviser in the Directorate-General for Financial Stability, Financial Services and Capital Markets Union (DG FISMA).

Commission registers European Citizens’ Initiatives on environmental labels and animal testing of cosmetics

Rules to make the Digital COVID Certi cate Regulation operational: now published

Wednesday 30 June

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e European Commission registered two new European Citizens’ Initiatives (ECIs): ‘European EcoScore’ concerning environmental information on product labels, and ‘Save crueltyfree cosmetics – Commit to a Europe without animal testing’.

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New EU rules to make the EU Digital COVID Certi cate operational – recently established to facilitate intra-EU travel during the pandemic – were published in the form of Commission Implementing Decision 2021/1073.

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Proposed Changes to EU Consumer Law on Product Safety and Consumer Credit

Finland submits its candidate for European Delegated Prosecutor

Wednesday 30 June

e Finnish Minister of Justice submi ed to the European Chief Prosecutor one candidate to become a European Delegated Prosecutor in Finland for the newly-created European Public Prosecutor’s Oﬃce.

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e European Commission proposed the revision of the General Product Safety Directive 2001/95 and the Consumer Credit Directive 2004/48 to enhance consumer protection, information and safety rules, and place more responsibility on market players.

Amendment of Europol rules: negotiating mandate adopted by the Council ursday 1 July

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e Council of the EU agreed a negotiating mandate on the proposal for a dra regulation presented by the European Commission on 9 December 2020, which will amend the Europol Regulation to strengthen its role in the ght against new types of criminal activities.

Court of Justice: amount to be paid to tax authorities for concealed transaction must be regarded as including VAT ursday 1 July

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e Court of Justice clari ed in Tribunal Económico Administrativo Regional de Galicia (C-521/19) that under the VAT Directive, in the event of a concealed transaction, the determination of the amounts paid and received as reconstituted by the tax authority must be regarded as already including VAT.

ursday 1 July

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EU and UK extend grace period for the movement of chilled meats to Northern Ireland ursday 1 July

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e EU and the United Kingdom reached an agreement on Wednesday to extend the grace period for the movement of chilled meats from Great Britain to Northern Ireland, a truce in the so-called ‘sausage war’, in the context of British reluctance to implement the Protocol on Ireland/Northern Ireland of the Withdrawal Agreement.

Extension to recognition of thirdcountry certi cates in inland navigation set to be approved ursday 1 July

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Following a political agreement between negotiators of the European Parliament and the Council of the EU, the Commi ee of Permanent Representatives of Member States (Coreper) endorsed an extension of the recognition of thirdcountry certi cates in inland navigation.

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AG Szpunar: Commission’s State aid competence extends to examining compensation awarded in Member Statethird country bilateral investment treaty arbitral proceedings ursday 1 July

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e Commission’s appeal (concerning international investment law, EU law, and State aid competences) against the General Court’s ruling in T-624/15, T-694/15 and T-704/15 should be upheld according to Advocate General Szpunar, who advises that the General Court has erred in law (Opinion in Commission v European Food and Others, C-638/19 P).

AG Pitruzzella: Commission’s appeal against General Court’s ruling in Hubei Xinyegang Special Tube should be upheld ursday 1 July

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French Conseil d’État orders Government to take additional measures to achieve Paris Climate Agreement ursday 1 July

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e French Conseil d’État, the highest administrative court in France, has ordered the French Government to take additional measures to achieve the objective of reducing greenhouse gas emissions by 40% by 2030.

ECtHR: environmental associations must be given access to information and judicial review in connection with administrative planning of radioactive storage plant

Advocate General Pitruzzella advised that the Court of Justice uphold the appeal request to set aside the General Court’s anti-dumping judgment Hubei Xinyegang Special Tube v Commission (T-500/17), in Commission v Hubei Xinyegang Special Tube (C-891/19 P).

Friday 2 July

Rules of procedure of Panel for the protection of the EU’s nancial interests amended

Relaxing COVID-19 Travel Restrictions: Council adds 10 countries to recommendation list

Friday 2 July

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Oﬃcial publication was made of Commission Decision 2021/1081 amending Decision 2018/1220 on the rules of procedure of the Panel referred to in Article 143 of Regulation 2018/1046 on the nancial rules applicable to the general budget of the EU.

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e European Court of Human Rights in Association BURESTOP 55 and Others v. France (applications nos. 56176/18, 56189/18, 56232/18, 56236/18, 56241/18, 56247/18) found a breach of the right of access to a tribunal (Article 6(1) ECHR), but no breach of the right of access to information (Article 10 ECHR) in respect of environmental protection associations opposing a planned geological storage centre for radioactive waste in France.

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e Council of the EU’s fortnightly post-review update was made to the list of countries in a recommendation on the gradual li ing of COVID-19 related travel restrictions to enter the EU: several countries have been added to the list so that their residents may enter the EU.

Nº65 · JULY 2, 2021

weekend

edition stay alert keep smart

Need for be er EU funding for crossborder regions identi ed by European Court of Auditors

New implementing rules on the introduction and import of cultural goods now published

Friday 2 July

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A report of the European Court of Auditors pointed out weaknesses in the implementation of EU cohesion policy instrument Interreg (European Territorial Cooperation programme), aimed at encouraging economic growth in border areas that face wealth disparity and development.

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e European Commission’s recently adopted Implementing Regulation 2021/1079 laying down detailed rules for implementing certain provisions of Regulation 2019/880 on the introduction and the import of cultural goods was published, and will enter into force on 22 July 2021.

Insights, Analyses & Op-Eds Enforcing copyright in accordance with data protection law: the Court of Justice’s M.I.C.M. ruling

‘Ceci n’est pas une acte du Conseil’. Extra-mural acts of the Council: tearing holes in the ‘complete system of legal remedies? by Michael De Boeck

by Meinhard Schröder

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Op-Ed on the Court of Justice’s M.I.C.M. (C-597/19) judgment, the illegality of the exchange of copyrighted material through the internet, and the intertwined issues of IP - with its enforcement issues - and data protection rights - with the

Op-Ed on the dismissed appeals of Advocate General Sharpston against her removal from oﬃce: a remarkable failure to shield the EU judicial system from undue in uence by Member States, showing a disquieting lack of critical re ection on the nature of the relevant declaration and its eﬀect in the EU legal order.

Nº65 · JULY 2, 2021

weekend

edition stay alert keep smart

Library - Book Review Philipp Dann and Arun K.

By Sascha Hardt and Prashant Sabharwal

iruvengadam (Eds.)

Democratic Constitutionalism in India and the European Union Review of a book that acknowledges and accepts the challenges of a comparative endeavour in examining democratic constitutional law in India and the EU, which makes a convincing case for the bene ts of doing so.

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