Weekend Edition Nº67 by eulawlive

Nº67

JULY 17

2021

weekend

edition stay alert keep smart

CHIARA ZILIOLI THE NEW ECB MONETARY POLICY STRATEGY AND THE ECB’S ROADMAP OF CLIMATE CHANGE-RELATED ACTIONS SOME LEGAL CONSIDERATIONS

www.eulawlive.com

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

The new ECB monetary policy strategy and the ECB’s roadmap of climate change-related actions – some legal considerations Chiara Zilioli

On 8 July 2021, the European Central Bank (ECB) published its new monetary policy strategy (2). Several aspects warrant a ention from a legal perspective, but the reference to the implications of climate change for price stability is certainly of great interest. A er brief remarks on three aspects of the ECB’s strategy, I will therefore focus on the climate change related action plan.

–– namely the maintenance of price stability –– in a general and abstract manner, but did not spell out precisely how that objective was to be given concrete expression in quantitative terms’ (3), the ECB speci ed in 2003 that the objective of maintaining price stability (applied since the end of 1998) entailed the maintenance of in ation rates at levels below, but close to, 2% over the medium term.

First, the ECB monetary policy strategy statement ne-tunes the de nition of price stability by se ing a symmetric 2% in ation target over the medium term, which means that negative and positive deviations of in ation from the target are considered equally undesirable. is may imply a transitory period in which in ation is moderately above target. Since ‘the authors of the Treaties chose to de ne the primary objective of the Union’s monetary policy

Whether the ECB, an independent institution, has the competence to de ne the meaning of price stability, the maintenance of which it is mandated by the Treaty, is a question which was raised in the early years of the European Economic and Monetary Union (EMU). At the time some authors argued that this competence would allow the ECB to de ne its own objective. ey submi ed that this might con ict with the principle of democracy (4).

1. Professor of Law at the Goethe University Frankfurt, and Director General of the Legal Services of the European Central Bank (ECB), where she leads a multinational team of lawyers. She has worked for the integration of Europe since 1989. e views expressed are those of the author and do not necessarily re ect the policy position of the ECB. 2. See the ECB’s monetary policy strategy statement here and ‘An overview of the ECB’s monetary policy strategy’ here. 3. Case C-493/17, Heinrich Weiss and Others [2018], ECLI:EU:T:2015:756, para 55. 4. F. Amtenbrink and J. de Haan, ‘ e European Central Bank: an independent specialised organisation of community law – a comment’, Common Market Law Review 39, pp. 65–76, 2002, in which the authors state that ‘[p]arliament should be able to decide to change the legal basis of the bank as a reaction to certain behaviour. Monetary policy is, in our view, just one form of economic policy, albeit an important one. Ultimately, it should be treated like other elements of economic policy (such as decisions on tax policy, or government spending, or regulation), even if its institutional setup is arranged diﬀerently’. ey go on to say that ‘[i]n order to be eﬀective from the principal-agent perspective, a central bank law should not only stipulate and clearly de ne the objectives of monetary policy, but moreover also quantify the stated objectives...... While the legal basis of the ECB goes quite a long way in de ning an explicit primary monetary objective compared to some previously applicable legal bases of Member State central banks, the EC Treaty nevertheless falls short of providing a well-de ned monetary objective the ful lment of which could become subject to review. In fact it is up to the ECB to quantify the objective of price stability. us, the ECB is not only independent in implementing monetary policy (instrument independence), as will be observed herea er, but to some extent also in formulating monetary policy (goal independence)’.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

policy instruments (ECB policy rates and, in recognition of the eﬀective lower bound, forward guidance, asset purchases and longer-term re nancing operations). All the instruments used serve the purpose of achieving the ECB’s objective and are founded in the Treaty. e distinction between ‘conventional’ and ‘nonconventional’ monetary policy tools is not a legal distinction and is not used in the statement. e statement also notes that new policy instruments may be considered and used to respond to new challenges in order to achieve price stability. In addition, there is explicit recognition of the importance of the proportionality assessment, especially when monetary policy instruments other than the standard policy rates are used.

However, the reason for the ECB’s competence to de ne price stability is that the ECB does not enjoy the right to set a ‘goal’ (as the goal is set by the Treaty), but has only ‘instrument independence’ (5). erefore, the de nition of price stability, which is a commitment undertaken by the ECB, de facto limits its scope of discretion. Accordingly, in 2018 in Weiss the Court expressly con rmed that the specication of a medium term objective is within the ECB’s competence: ‘It does not appear that the speci cation of the objective of maintaining price stability as the maintenance of in ation rates at levels below, but close to, 2% over the medium term, which the ESCB chose to adopt in 2003, is vitiated by a manifest error of assessment and goes beyond the framework established by the FEU Treaty. As the ECB has explained, such a choice can properly be based, inter alia, on the fact that instruments for measuring in ation are not precise, on the appreciable diﬀerences in in ation within the euro area and on the need to preserve a safety margin to guard against the possible emergence of a risk of de ation’ (6).

Indeed, the emphasis on the proportionality assessment as an integral part of monetary policy decisions, including a clear description of how the assessment is carried out and how its results may aﬀect the choice, design and calibration of instruments recognises the centrality of the proportionality assessment in determining whether instruments are validly adopted and implemented.

Second, the ECB monetary policy strategy statement con rms the ECB’s use of various monetary

5. O. Issing, ‘Central bank independence: economic and political dimensions’, National Institute Economic Review, Issue 196, 2006, pp. 66/76. 6. Weiss, para 56.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

From a legal perspective, the decision to adopt an acird, the ECB announced changes in its communition plan to include climate change considerations cation policy, including using more visual and layein the monetary policy strategy is a highly imporred communication to address the wider public. tant development. e decision was preceded by e case law clearly states that the motivation of a extensive debate with legal experts and academics legal act is an essential validity requirement, but that in the eld, both internally and externally. A milesit cannot address all the details of a decision. e tone for this debate was the ECB Strategic Review ECB is accountable for its monetary policy deciLegal Roundtable in February 2021, at which a numsions to all European citizens, not only to experts ber of leading academics, in the presence of the but also to the wider public. Price stability is a commembers of the Governing Council, discussed the mon good. Explaining ECB decisions more broadly pursuit of the ECB’s primary and secondary objectiand thoroughly, covering their impacts and side ves, the principle of proportionaeﬀects and why they are proporlity and the institutional position tionate in relation to maintaining of the ECB within the EU and price stability, will further improe Governing Council the EMU, focusing on its indeve the legal justi cation of those ECB decisions. of the ECB has decided pendence and accountability. e need for the ECB to respond on a comprehensive to the threats posed by climate Turning to climate change, the change featured prominently in ECB Governing Council unaniclimate action plan these discussions. mously stated that ‘within its mandate, the Governing Council with an ambitious e action plan clari es that reis commi ed to ensuring that the ecting climate change consideEurosystem fully takes into acroadmap: a highly rations in the monetary policy of count, in line with the EU’s climate goals and objectives, the im- important development the EU falls squarely within the remit of the primary objective of plications of climate change and the European System of Central the carbon transition for moneBanks (ESCB) to maintain price stability (8). tary policy and central banking’. To that end, it deciAccording to the case law of the Court of Justice of ded on a comprehensive action plan with an ambithe European Union (CJEU), in the absence of a tious roadmap: (i) to incorporate climate factors in precise de nition in the Treaties, it is by referring to its monetary policy assessment, and (ii) to adapt its the objectives of the ECB’s action and to the instrumonetary policy operational framework in the areas ments employed in relation to that action that the of disclosure, risk assessment, collateral framework monetary policy of the EU can be de ned (9). Conand corporate sector asset purchases (7). sequently, in the context of monetary policy, the

7. See Press Release, ‘ECB presents action plan to include climate change considerations in its monetary policy strategy’, 8 July 2021 here 8. Articles 119(2), 127(1) and 292(2) TFEU. 9. Case C-380/12, omas Pringle v Government of Ireland [2012] ECLI:EU:C:2012:756, paras 53 and 55; Case C-62/14, Peter Gauweiler and Others v Deutscher Bundestag [2015], ECLI:EU:C:2015:400, para 46; Weiss, para 53.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

the legal basis for the ECB and the NCBs to conduct credit operations based on adequate collateral (10). Requirements to ensure the adequacy of collateral accepted by the Eurosystem in its credit operations, including eligibility criteria and other risk management measures, are set out in the ESCB legal framework (11). Risk management objectives are also taken into account in the context of asset purchase programmes by adopting a number of safeguards. Taking into account climate related risks clearly falls within the remit of the primary objective, but also reect compliance with the guiding principle that public nances must be sound (12).

ECB’s action must primarily aim at the price stability objective set out in the Treaties for the EU’s monetary policy. Climate change and the transition towards a more sustainable economy aﬀect the outlook for price stability by impacting macroeconomic indicators such as in ation, output, employment, interest rates, investment and productivity as well as nancial stability and the transmission of monetary policy. It is therefore necessary to take these considerations into account when acting to maintain price stability. Ensuring climate change related risks are properly taken into account in the monetary policy framework is an important focus of several of the measures included in the action plan. Minimising the Eurosystem’s balance sheet risk exposure is an important governance principle. It is re ected, for example, in Article 18.1 of the ESCB Statute, which provides

Moreover, the strategy statement leaves open the possibility for the ECB to rely on the second sentence of Article 127(1), which provides that the ESCB ‘shall support the general economic policies in the Union with a view to contributing to the achieve-

10. is recognises that adequate collateralisation is a necessary means of supporting the smooth conduct of monetary policy, as the eﬀectiveness of monetary policy transmission is also a function of the extensiveness of the Eurosystem’s collateral framework. See U. Bindseil and others, ECB Occasional Paper Series, ‘ e Eurosystem collateral framework explained’, No 189, May 2017. 11. See, in particular, Guideline (EU) 2015/510 of the European Central Bank of 19 December 2014 on the implementation of the Eurosystem monetary policy framework (General Documentation Guideline) (ECB/2014/60) (OJ L 91, 204.2015, p. 3). 12. Re ected in Article 127(1) read in conjunction with Article 119(3); Gauweiler, para 61.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

bute with the tools and instruments it has available ment of the objectives of the Union as laid down in to contribute to the EU’s climate neutrality objectiArticle 3 of the Treaty on European Union’ when ves, which aﬀect all sectors of the economy. ese adopting its measures. e action plan re ects the measures are without prejudice to the primary oblimitations that would apply to any such measures. jective of maintaining price stability. As is evident from its wording, the second sentence of Article 127(1) does not mandate the ECB to supe action plan complements port directly the objectives of the steps the ECB has already taken EU as laid down in Article 3 TEU to integrate environmental pro(‘sustainable development of Europe… aimed at... a high level of e action plan comple- tection requirements into the denition and implementation of protection and improvement of ments steps the ECB its policies and activities, as rethe quality of the environment’), quired by Article 11 TFEU and but indirectly, by supporting the has already taken to Article 37 of the Charter of Funpolicies through which the comintegrate environmental damental Rights of the European petent institutions have eshed out these objectives. Moreover, protection requirements Union. For instance, the development of the Eurosystem’s mathe ‘supportive’ nature of the into the de nition and croeconomic modelling capaECB’s mandate indicates that it city and the new statistical indidoes not have the power to conimplementation of its cators for climate change risk duct autonomous policymaking analysis will enhance the integrain the eld of the environment policies and activities tion of climate change considera(13). e ECB’s role is rather to tions in the implementation of support the policies of actors monetary policy. with primary responsibility to act on climate change, such as the We are navigating uncharted waters in times of unEU’s co-legislators, the Commission and Member certainty. e changing climate threatens life on this State governments. e implementation of the acplanet as we know it and the way our economies hation plan will therefore be in line with speci c EU ve functioned so far. For this reason the Governing policies that support the EU’s environmental sustaiCouncil has decided to assess the appropriateness nability objectives (for example the proposed Corof its monetary policy strategy regularly, with the porate Sustainability Disclosure Regulation (14), next assessment expected in 2025, to ensure that the the Taxonomy Regulation (15), and the Regulation institutional and legal framework is solid yet exible on sustainability-related disclosures (16) in the enough to deal with the challenges ahead of us. nancial services sector). e ECB will also contri-

13. is is a competence held by the Council and the European Parliament and by the Member States in accordance with Article 4(2)(e) and Articles 191-193 TFEU. 14. Proposal for a Directive of the European Parliament and the Council amending Directive 2013/34/EU, Directive 2004/109/EC, Directive 2006/43/EC and Regulation (EU) No 537/2014, as regards corporate sustainability reporting, COM/2021/189 nal. 15. Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment and amending Regulation (EU) 2019/2088 (OJ L 198, 22.6.2020, p. 13). 16. Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability‐related disclosures in the nancial services sector (OJ L 317, 9.12.2019, p. 1).

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

News Highlights Week 12 to 16 July 2021

Four banks classi ed as ‘signi cant’ by the ECB undergo comprehensive assessment

Action for annulment of waiver of parliamentary immunity of Catalan MEPs published

Monday 12 July

READ MORE ON EU LAW LIVE

e European Central Bank classi ed two Italian banks, one Estonian bank and one Lithuanian bank supervised by the ECB as ‘signi cant’, and the ensuing comprehensive assessments that they were required to undergo were published.

An action for annulment against the European Parliament’s decision to suspend the waiver of parliamentary immunity of three Catalan Members of the European Parliament (Puigdemont, Comín, Ponsatí v European Parliament, T-272/21) was oﬃcially published, in which procedural errors have been alleged.

European Chief Prosecutor sends formal le er to Slovenia for failure to appoint delegated prosecutors

e European Chemicals Agency adds chemicals to list of substances of ‘very high concern’

Monday 12 July

READ MORE ON EU LAW LIVE

e European Chief Prosecutor sent a criticising le er to the Slovenian Minister of Justice as Slovenia is the only Member State participating in the European Public Prosecutor’s Oﬃce that has not yet appointed delegated prosecutors, a necessary step so that it may carry out activities in said Member State.

Eight hazardous chemicals were added to the European Chemical Agency’s list of substances of ‘very high concern’ of harm to human health or the environment on 8 July 2021, bringing the number to a total of 219.

Action brought against Commission for limiting support for large undertakings aﬀected by COVID-19 published

European Data Protection Board’s June Plenary

Monday 12 July

READ MORE ON EU LAW LIVE

An action brought before the General Court by Dutch corporation Bastion Holding BV (T-289/21) was published in the Oﬃcial Journal, seeking annulment of a Commission Decision limiting the maximum amount of aid for large undertakings under the direct grant scheme to support the xed costs for enterprises aﬀected by the COVID-19 outbreak.

Monday 12 July

READ MORE ON EU LAW LIVE

A number of documents were adopted by the European Data Protection Board at its Plenary last month in June, on topics ranging from arti cial intelligence, a possible ‘Digital Euro’, international data-transfer compliance checks, and the ‘Tobacco Traceability System’.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

ECB’s supervisory banking statistics for the rst quarter of 2021 published

Commission publishes ndings of Market De nition Notice evaluation

Monday 12 July

READ MORE ON EU LAW LIVE

e European Central Bank published supervisory banking statistics for the rst quarter of 2021, showing that while the aggregate total capital ratio of signi cant institutions and the aggregate non-performing loans ratio have declined compared to the previous quarter, the pro tability of signi cant institutions and the liquidity coverage ratio have increased.

e European Commission published a Staﬀ Working Document summarising its ndings of the evaluation of the Market De nition Notice, which dates from 1997 and provides guidance as to how the Commission applies the concept of ‘relevant product’ and ‘geographic market’ in enforcing EU competition law.

ESMA nes DTCC Derivatives Repository for data breaches

EIOPA publishes Opinion on use of risk mitigation techniques by insurance undertakings

Monday 12 July

READ MORE ON EU LAW LIVE

e European Securities and Markets Authority ned DTCC Derivatives Repository Plc a total of 408,000 euros in relation to seven infringements of the European Market Infrastructure Regulation, in particular ofs its data-related obligations.

Monday 12 July

EU sanctions on Russia concerning destabilisation of Ukraine extended

Disease control rules – moving animals within and from restricted zones: Commission Delegated Regulation

Tuesday 13 July

READ MORE ON EU LAW LIVE

EU economic sanctions that are currently in place against Russia were extended for a further six months by the Council of the European Union, until 31 January 2022 (they were last extended in December 2020).

READ MORE ON EU LAW LIVE

e European Insurance and Occupational Pensions Authority published an Opinion, addressed to national competent authorities, in which it assesses the use of risk mitigation techniques by insurance undertakings across the EU.

Tuesday 13 July

READ MORE ON EU LAW LIVE

A new measure (Commission Delegated Regulation 2021/1140) on the restrictions for movements of animals and products within and from restricted zones for disease control purposes was published, amending Commission Delegated Regulation 2020/687, which supplements Regulation 2016/429.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

ECtHR: failure to register notice of marriage of same-sex couples breaches the right to private and family life

Council: Another extension of temporary derogation from Rules of Procedure

Tuesday 13 July

READ MORE ON EU LAW LIVE

e European Court of Human Rights ruled in Fedotova and Others v. Russia (applications nos. 40792/10, 30538/14 and 43439/14) that the Russian authorities breached the right to respect for private and family life (Article 8 ECHR) by arbitrarily refusing to register the notice of marriage of several same-sex couples.

e most recent measure (in a string of many) implementing a further extension of the temporary derogation from the Council’s Rules of Procedure to ensure ‘institutional continuity’ in decision-making despite COVID-19-related travel diﬃculties was published: Council Decision 2021/1142.

Visa Information System Regulations published

Horizontal Block Exemption Regulations and Guidelines open for public consultation

Tuesday 13 July

READ MORE ON EU LAW LIVE

Two Regulations on the Visa Information System (VIS) that allows data to be exchanged between Member States were published: Regulation 2021/1134 – reforming and updating the VIS, and Regulation 2021/1133 – an amending regulation on the conditions to access other EU information systems (interoperability).

Tuesday 13 July

Call for the selection of the Controller of procedural guarantees in the context of investigations conducted by the OLAF

A step forward towards eradicating forced labour: New EU Guidance on due diligence for companies

Tuesday 13 July

READ MORE ON EU LAW LIVE

A call for applications (2021/20062) was made for the selection of the Controller of procedural guarantees in the context of investigations conducted by the European Anti-Fraud Oﬃce (OLAF).

READ MORE ON EU LAW LIVE

e European Commission made the Horizontal Block Exemption Regulations and accompanying Guidelines available for public consultation, with the aim of gathering feedback on the changes it proposes to address the identi ed issues with the current rules.

Tuesday 13 July

READ MORE ON EU LAW LIVE

e European Commission and the European External Action Service (EEAS) published Guidance that provides concrete and practical advice to EU companies on how to identify, prevent and mitigate the risk of forced labour in their operations and supply chains.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

Amendment of the Aarhus Regulation: Council and Parliament reach a provisional agreement

Italian scheme to support cinematic productions approved under EU State aid rules

Tuesday 13 July

READ MORE ON EU LAW LIVE

e Council Presidency and the European Parliament’s negotiators reached a provisional agreement to bring Regulation 1367/2006, also known as the Aarhus Regulation, in line with the Aarhus Convention.

e European Commission assessed and approved a 100million euro Italian scheme to support the production of cinematographic and audiovisual works under EU State aid rules speci cally Article 107(3)(d) TFEU on aid to promote culture, and the Cinema Communication.

European Commission adopts vast climate legislation-package: emissions trading, energy, taxation, biodiversity, carbon measures and transport

Court of Justice grants Commission interim measures against Poland in case concerning judicial independence

Wednesday 14 July

READ MORE ON EU LAW LIVE

e European Commission adopted a broad set of interconnected legislative proposals to deliver targets set out in the European Climate Law European Green Deal: to reduce net greenhouse gas emissions by at least 55% by 2030, compared to 1990 levels, in the elds of the EU’s biodiversity, emission trading, energy, land use, transport and taxation policies.

EU Unilateral Declaration in truce on ‘sausage war’: three month delay to EUlaw food safety rules on meat products imported from Great Britain to Northern Ireland Wednesday 14 July

READ MORE ON EU LAW LIVE

A Council Decision was published with the EU’s unilateral declaration that EU-law food safety prohibitions on imports of certain meat products from third countries into the EU continue to apply to those in Northern Ireland (Council Decision 2021/1157), but representing a truce with the UK for a further three month delay of the grace period.

Wednesday 14 July

READ MORE ON EU LAW LIVE

By Order of the Vice-President, the Court of Justice ordered interim measures against Poland to immediately suspend the application of national provisions on the competences of the Disciplinary Chamber of its Supreme Court in Commission v Poland (C-204/21 R), until nal judgment in case C-204/21 is delivered.

VAT exemption for EU-purchased COVID-19 donations Wednesday 14 July

READ MORE ON EU LAW LIVE

e Council of the EU adopted a ‘buy and donate’ directive amending the VAT Directive 2006/112, so that EU bodies making COVID-19 related purchases in order to donate them can bene t from a VAT exemption.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

EU-Bosnia and Herzegovina Stabilisation and Association Council: main takeaways Wednesday 14 July

READ MORE ON EU LAW LIVE

General Court: harmonised technical standards are protected by copyright and no overriding public interest in accessing them can be presumed

e Stabilisation and Association Council between the EU and Bosnia and Herzegovina met to discuss relations under the Stabilisation and Association Process, in particular, the pre-accession process in light of the Commission’s 2020 Report, with a focus on political criteria, economic criteria, the ‘acquis’, and pre-accession assistance.

Wednesday 14 July

COVID-19 recovery: Commission welcomes Council’s approval of recovery and resilience plans

Disciplinary regime of Polish judges is incompatible with EU law, Court of Justice rules

Wednesday 14 July

READ MORE ON EU LAW LIVE

e General Court dismissed the annulment action in Public.Resource.Org and Right to Know v Commission (T-185/19) against Commission Decision C(2019) 639 nal, by which the Commission con rmed its refusal to give access to a set of documents containing descriptions of four technical standards prepared by the European Commi ee for Standardisation.

ursday 15 July

READ MORE ON EU LAW LIVE

e European Commission announced that it welcomes the Council’s approval of its assessments of a number of Member States’ recovery and resilience plans, which will be funded by the Recovery and Resilience Facility to support investment and reform.

e Court of Justice ruled in Grand Chamber case Commission v Poland (C-791/19) that Poland failed to ful l its obligations under the second subparagraph of Article 19(1) TEU, by failing to guarantee the independence and impartiality of the Disciplinary Chamber of its Supreme Court (Izba Dyscyplinarna), as set up under national rules introduced in 2017.

Polish Constitutional Court rules that interim measures imposed on it by the Court of Justice are unconstitutional

Headscarves case: EU Discrimination Law does not prevent employer-ban on visible forms of expression of beliefs in the workplace under certain justi cations

ursday 15 July

READ MORE ON EU LAW LIVE

In an unprecedented move in the history of EU legal integration, the Polish Constitutional Court ruled on Wednesday that interim measures imposed on it concerning national provisions regulating its Disciplinary Chamber by the Court of Justice are contrary to its constitution.

ursday 15 July

READ MORE ON EU LAW LIVE

An employer can ban employees from wearing any visible form of expression of belief in the workplace if it has an internal neutrality policy: the Grand Chamber of the Court of Justice has con rmed that such ban does not breach EU discrimination law because the discrimination is justi ed (Article 2(1) and (2)(a) of Directive 2000/78) in joined cases C804/18 and C-341/19, WABE & MH Müller Handel.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

Principle of Energy Solidarity to be taken into account when reviewing legality of EU institutions energy policy acts, con rms Court of Justice ursday 15 July

READ MORE ON EU LAW LIVE

e Court of Justice (in Grand Chamber formation) rejected Germany’s appeal in C-848/19 P, Germany v Poland, thereby upholding the General Court’s ruling applying and nding a breach of the principle of energy solidarity (Article 194(1) TFEU). e Court held that the principle is a fundamental one that has binding legal eﬀects and must be taken into account in reviews of the legality of EU acts in the eld of energy policy.

College of Europe seeking Academic Assistant in its Department of European Legal Studies ursday 15 July

READ MORE ON EU LAW LIVE

e College of Europe published an announcement that it is seeking an Academic Assistant to join its Department of European Legal Studies, based in its Bruges campus.

Grand Chamber con rms validity of 2016 EBA’s POG Guidelines and system of judicial review of ESA’s so law

New Council Recommendation on the economic policy of the euro area now published ursday 15 July

Oﬃcial publication was made of a Council Recommendation on the economic policy of the euro area, taking into account the COVID-19 crisis and calling on euro area Member States to take action, individually including through their recovery and resilience plans, and collectively within the Eurogroup, in the period 2021–2022 to achieve a number of goals.

General Court dismisses action for annulment against Commission decision to initiate formal investigation procedure on tax rulings issued by the Netherlands to Nike and Converse ursday 15 July

READ MORE ON EU LAW LIVE

e General Court dismissed the action in Nike European Operations Netherlands and Converse Netherlands v Commission (T-648/19) brought against the Commission’s decision to initiate the formal investigation procedure to determine whether several tax rulings issued to the companies Nike and Converse by the Dutch tax administration amounted to unlawful State aid.

Council agrees its position on EU budget for 2022 ursday 15 July

ursday 15 July

READ MORE ON EU LAW LIVE

e Grand Chamber of the Court of Justice in Fédération bancaire ançaise v. Autorité de contrôle prudential et de résolution (‘FBF’) (C-911/19) con rmed the validity of the 2016 European Banking Authority’s Guidelines on product oversight and governance arrangements for retail banking products, and clarifying the system of judicial review of so law acts.

e Council of the EU agreed its position on the EU dra budget for 2022, which amounts to 167.7 billion euros in commitments and 170 billion euros in payments. e 2022 EU budget will be complemented by an estimated 143.5 billion euros in grants under NextGenerationEU.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

Scope of duties of authentication and of statement of reasons in SRB decisions on ex ante contributions to the SRF clari ed by Court of Justice ursday 15 July

READ MORE ON EU LAW LIVE

e Court of Justice’s Grand Chamber in Commission v Landesbank Baden-Wür emberg and SRB (joined cases C584/20 P and C-621/20 P) quashed the General Court judgment in T-411/17 (which annulled a decision of the Single Resolution Board on the calculation contributions to the Single Resolution Fund in so as far as it concerned the Landesbank Baden-Wür emberg), nding it was vitiated by errors and should have been annulled on diﬀerent grounds.

Court of Justice clari es how the principle of non-discrimination applies to access to social assistance bene ts by EU citizens ursday 15 July

READ MORE ON EU LAW LIVE

e Court of Justice ruled in Grand Chamber case e Department for Communities in Northern Ireland (C-709/20) on access to social assistance bene ts by a citizen of the EU and the interpretation of the principle of non-discrimination on grounds of nationality under Article 18 TFEU and its interaction with Article 24 of the Citizens’ Rights Directive (Directi-

Economically inactive EU citizens can access public health care in the Member State they are se led in: Court of Justice ursday 15 July

READ MORE ON EU LAW LIVE

e Court of Justice ruled in A (public health care) (C535/19) on the right of economically inactive EU citizens to access public health care of the host Member State they are se led in under the Citizens Directive 2004/38 and Social Security Coordination Regulation 883/2004.

AG Saugmandsgaard Øe: Article 17 of Directive 2019/790 is compatible with the freedom of expression ursday 15 July

READ MORE ON EU LAW LIVE

In his Opinion in Grand Chamber case Poland v Parliament (C-401/19), Advocate General Saugmandsgaard Øe advised the Court to rule that Article 17 of the Directive on copyright and related rights in the Digital Single Market (2019/790) is compatible with the freedom of expression and information guaranteed by Article 11 of the Charter.

VAT exemption-Directive for EUpurchased COVID-19 donations oﬃcially published ursday 15 July

READ MORE ON EU LAW LIVE

Oﬃcial publication was made of the ‘Buy and Donate’ Council Directive 2021/1159, which amends VAT Directive 2006/112 so that VAT exemptions can be applied for COVID-19 related purchases made by EU bodies with the intention of donating them.

Brussels Recast Regulation determines both international and territorial jurisdiction of claims for damages resulting from collusive arrangements: Court of Justice ursday 15 July

READ MORE ON EU LAW LIVE

In Volvo and Others (C-320/20), the Court of Justice con rmed that Article 7(2) of the Brussels Recast Regulation (1215/2012) determines both the international and territorial jurisdiction of a claim for damages resulting from collusive arrangements contrary to Article 101 TFEU.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

AG Saugmandsgaard Øe: EU law does not require that ISO standards to which EU secondary law refers are published in the Oﬃcial Journal ursday 15 July

READ MORE ON EU LAW LIVE

Advocate General Saugmandsgaard Øe delivered his Opinion in the Grand Chamber case Stichting Rookpreventie Jeugd and Others (C-160/20) on certain provisions of Directive 2014/40 on the manufacture, presentation and sale of tobacco and related products, in the light of the World Health Organization Framework Convention on Tobacco Control.

Commission launches infringement procedures against Hungary and Poland for violations of fundamental rights of LGBTIQ people ursday 15 July

READ MORE ON EU LAW LIVE

e European Commission launched infringement processes against Hungary and Poland for breach of the EU equality and fundamental rights of LGBTQI people, as well as various secondary law instruments.

Working Time Directive applies to military activity in some contexts according to Court of Justice ursday 15 July

READ MORE ON EU LAW LIVE

e Court of Justice handed down its judgment in Ministrstvo za obrambo (C-742/19), clarifying that military activity can fall within the scope of the Working Time Directive (2003/88) and identifying where it is excluded from its scope.

General Court allows registration of a three-dimensional mark in the shape of a lipstick ursday 15 July

READ MORE ON EU LAW LIVE

e General Court in Guerlain (T-488/20) annulled a decision of the EUIPO Board of Appeal and con rmed that threedimensional trademarks in respect of lipsticks can be registered in the EU.

Combined requirement of residence and nationality for corporate oﬃcers is contrary to EEA law: EFTA Court

Council updates list on relaxing COVID-19 travel restrictions to enter the EU

Friday 16 July

READ MORE ON EU LAW LIVE

In EFTA Surveillance Authority v e Kingdom of Norway (E9/20), the EFTA Court held that Norwegian law requiring Norwegian residence and nationality for the position of general manager and members of the corporate assembly in public limited companies, and for founders of a nancial undertaking, breaches freedom of establishment under Article 31 EEA Agreement.

READ MORE ON EU LAW LIVE

e Council of the EU removed Rwanda and ailand, and added Ukraine to its list of countries in a reviewed and updated recommendation on the gradual li ing of COVID-19 related travel restrictions into the EU.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

Applicable law and minimum wage terms in employment contracts: Court of Justice clari es where applicable law agreed by parties may prevail over conict-of-law rules set out in Rome I Regulation Friday 16 July

READ MORE ON EU LAW LIVE

In joined cases C-152/20 and C-218/20, SC Gruber Logistics & Sindicatul Lucrătorilor din Transporturi, the Court of Justice ruled that the applicable law governing a contract – possibly excluding rules on the minimum wage, is the applicable law as agreed under the contract – when that is diﬀerent from that set out in Article 8 of the Rome I Regulation.

Commission ‘deeply concerned’ by Polish Constitutional Tribunal ruling on interim measures Friday 16 July

READ MORE ON EU LAW LIVE

e European Commission issued a statement on the Polish Constitutional Court’s decision of 14 July, which states that interim measures imposed on it by the Court of Justice are contrary to the Polish Constitution. According to the Commission, this decision reaﬃrms its concerns about the state of the rule of law in Poland.

ECtHR: mere indication from last instance court that applicable national rules ‘are not contrary to EU law’ does not justify refusal to request preliminary ruling from the Court of Justice Friday 16 July

READ MORE ON EU LAW LIVE

e European Court of Human Rights ruled in Bio Farmland Betriebs S.R.L. v. Romania (application no. 43639/17) that the Court of Appeal of Timișoara breached the applicant’s right to a fair hearing (Article 6(1) ECHR) when it rejected its application for a preliminary ruling to be sought from the Court of Justice without giving any reasons for its decision.

EFTA Court: necessary travel time out of working hours is ‘working time’ Friday 16 July

READ MORE ON EU LAW LIVE

e EFTA Court ruled in Eyjólfur Orri Sverrisson v e Icelandic State (E-11/20) that an employee’s time spent travelling to and/or from a location other than the worker’s place of a endance in order to carry out his or her activities or duties in that other location constitutes ‘working time’ under the Working Time Directive (2003/88).

Court of Justice con rms its exclusive jurisdiction to hear actions for noncontractual liability against the EU on account of actions of former Commissioners Friday 16 July

READ MORE ON EU LAW LIVE

e Court of Justice gave its judgment in OH (Immunité de juridiction) (C-758/19), a preliminary ruling on the scope of the immunities of a Commissioner in the context of criminal and civil proceedings under Protocol No 7 on the Privileges and Immunities of the EU.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

Insights, Analyses & Op-Eds

Opinion of Advocate General Szpunar in Commission v European Food and Others (C-638/19 P): When is State aid granted? e implications of the Micula case by Juan Jorge Piernas López

European Parliament defending LGBTIQ people in Hungary: all tools to be used by Aleksejs Dimitrovs

Op-Ed on the European Parliament’s recent resolution and actions concerning breaches of EU law and of the rights of LGBTIQ citizens in Hungary as a result of in particular an amending Act prohibiting the ‘portrayal and promotion of gender identity diﬀerent from sex assigned at birth, the change of sex and homosexuality’ in certain contexts.

READ ON EU LAW LIVE

Op-Ed on Advocate General Szpunar’s Opinion in the wellknown Micula case that raises very relevant questions related to the control of State aid under EU law, particularly in relation to the applicability of the Achmea case law and the time when State aid must be considered to have been granted by a Member State.

Insurance Transaction and Proportional Deduction of VAT in Rádio Popular

Advocate General considers Article 17 of the CDSM Directive does not violate the right to freedom of expression by Bernd Justin Jü e

READ ON EU LAW LIVE

by Darya Budova

READ ON EU LAW LIVE

Analysis of the Court of Justice’s judgment in Rádio Popular (C-695/19), another stepping stone in the complex case law on insurance and nancial services, also again drawing the line between diﬀerent kinds of exemptions and other rules in the VAT Directive.

READ ON EU LAW LIVE

Analysis of the long-awaited Opinion of Advocate General Saugmandsgaard Øe who suggests that the Court of Justice should dismiss an action for annulment brought by Poland against certain parts of Article 17 of the Copyright in the Digital Single Market (2019/790), which comes a er a lengthy discussion on how to transpose Article 17 into national law, and a er the European Commission had published its Guidance on the provision.

Nº67 · JULY 17, 2021

weekend

edition stay alert keep smart

Library - Book Review

By Anjum Shabbir

Federico Fabbrini

READ ON EU LAW LIVE

Brexit and the Future of the European Union: e Case for Constitutional Reforms Review of a concise book that brings together a wide breadth of knowledge in a short space, showcasing the author’s knowledge and expertise of EU aﬀairs, and which pitches how EU integration and constitutional reform can generally move forward.