Weekend Edition Nº71 by eulawlive

Nº71

SEPTEMBER 18

2021

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RUI TAVARES LANCEIRO

A LIGHT AT THE END OF THE TUNNEL? THE AMENDMENT OF THE AARHUS REGULATION AND EU COMPLIANCE WITH THE AARHUS CONVENTION

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Nº71 · SEPTEMBER 18, 2021

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A light at the end of the tunnel? The amendment of the Aarhus Regulation and EU compliance with the Aarhus Convention Rui Tavares Lanceiro

e question was, mainly, compliance of the EU with Article 9(3) of the Convention, which establishes that members of the public should have access to administrative or judicial procedures to challenge acts and omissions that contravene environmental law. Access to the Court of Justice of the EU (CJEU) to review EU acts that violate environmental law is notoriously diﬃcult because of the Court’s interpretation of Article 263(4) TFEU on the basis of the so-called Plaumann test (C-25/62). e preliminary reference procedure of Article 267 TFEU also does not provide a direct avenue for the public to litigate before the CJEU. at means that the way to ensure compliance was to create an internal admi-

A er a months-long negotiation, a political agreement in trilogue was reached on 12 July 2021 on an amendment to the Aarhus Regulation broadening access to justice in environmental ma ers and bringing the EU into compliance with the Aarhus Convention, at least for now. e Aarhus Convention, a multilateral agreement that is one of the most important international treaties in the eld of international environmental law, guarantees access to information, public participation in decision-making, and access to justice in environmental ma ers (2). Both the EU and all its Member States are parties to the Convention (3). In order to implement the Aarhus Convention with regard to the EU institutions and bodies, Regulation 1367/2006 (the Aarhus Regulation) was approved (4).

Access to the CJEU to review EU acts that violate environmental law is notoriously diﬃcult under the Plaumann test

1. Rui Tavares Lanceiro is an Assistant Professor at the University of Lisbon Law School, having recently published his PhD thesis. He is researcher of the Lisbon Centre for Research in Public Law (CIDP) and advisor to the Portuguese Constitutional Court. 2. UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Ma ers, done at Aarhus, Denmark, on 25 June 1998. 3. For the EU, see Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental ma ers, OJ L 124, 17.5.2005, p. 1. 4. Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Ma ers to Community institutions and bodies, OJ L 264, 25.9.2006, p. 13.

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On 17 March 2017, following a communication by the non-governmental organisation (NGO) ClientEarth, regarding access to justice at EU level, the ACCC issued its ndings in case ACCC/C/ 2008/32. It held that the jurisprudence of the CJEU on access to justice concerning acts of the EU was so restrictive that, unless fully compensated for by adequate administrative review procedures, it meant that the EU was in breach of the Convention. However, the criteria for access to administrative review under the Aarhus Regulation was also deemed too restrictive.

nistrative review procedure that allowed members of the public to question the legality of EU acts, which violate environmental law. e decisions resulting from that review procedure, addressed to the person who requested the review, can be reviewed by the CJEU. is solution, however, was considered to be awed. e approved amendment is a light at the end of the tunnel of a procedure to review the compliance of the EU with the Aarhus Convention that started in 2017. But is it truly the end?

At the sixth session of the MoP to the Aarhus Convention (Budva, Montenegro, 2017), the EU, a er some last minute negotiation, managed to get an agreement to postpone the decision-making on this case, avoiding being considered to be noncompliant. e decision on the case was to be taken in the next MoP to be held this year and, in the meantime, the MoP requested the ACCC to review any developments.

Background Compliance with the Aarhus Convention is assessed by the Compliance Commi ee (ACCC), established according to its Article 15 and to Decision I/7 of the Meeting of Parties. e ACCC’s ndings are submi ed to the Meeting of the Parties (MoP) to the Aarhus Convention, which may decide upon appropriate measures to bring about full compliance with the Convention.

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is is the background for the legislative procedure What are the changes made? amending the Aarhus Regulation. A er requests by the Council (5) and by the Parliament (6) on the a) Broadening of the de nitions of administrative Commission to table a legislative proposal, on 14 act and omission October 2020, it adopted a proposal to amend the Aarhus Regulation (7) and a communication on e proposed amendment of the Aarhus RegulaAccess to Justice (8) in response to the ACCC’s ntion introduces three diﬀerences in relation to the dings in case ACCC/C/ 2008/32. is was in line de nition of administrative act (Article 2(1)(g)), with a commitment by the Commission, as part of broadening it. e de nition is important because the European Green Deal, to improve access to adonly administrative acts can be subjected to the inministrative and judicial review in environmental ternal review mechanism established in Article 10 ma ers. e proposal was the rst step in the legislaof the Regulation. e diﬀerences are: tive procedure that is still ongoing, but which has culminated in the political 1) Instead of only incluagreement reached in triloding ‘measures of indivigue back in July 2021. e dual scope’ as has been dofuture text of the amendne until now, according to One of the main amendments ment resulting from the polithe amended version of the tical agreement was com- consists of the broadening of prov ision, any nonmunicated to the ACCC in legislative act adopted by a late July 2021. EU institution or body the concept of ‘administrative

acts’ and ‘administrative omissions’ subject to the internal review mechanism

shall be considered an admini strative act. is means that non-legislative acts of general scope, as delegated or implementing regulations, can also be the subject of the internal review procedure. 2) e de nition is also broadened because in the

5. Council Decision (EU) 2018/881 of 18 June 2018 requesting the Commission to submit a study on the Union's options for addressing the ndings of the Aarhus Convention Compliance Commi ee in case ACCC/C/2008/32 and, if appropriate in view of the outcomes of the study, a proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1367/2006, OJ L 155, 19.6.2018, p. 6. 6. European Parliament resolution of 15 January 2020 on the European Green Deal (2019/2956(RSP)), para. 103. 7. Proposal for a Regulation of the European Parliament and of the Council on amending Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Ma ers to Community institutions and bodies, COM/2020/642 nal. 8. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Commi ee and the Commi ee of the Regions - Improving access to justice in environmental ma ers in the EU and its Member States, COM/202.

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e amended de nition is, therefore, much broader than the original one, especially with regard to the rst two diﬀerences, including all non-legislative EU acts, of individual and general scope, irrespective of their legal basis, that have legal eﬀects. e proposal of the Commission exempted from the de nition of administrative act (and, therefore, from the scope of the internal review mechanism) those provisions of EU acts for which EU law explicitly requires implementing measures at EU or national level. is was a point of contention in the trilogue discussions, with the Council maintaining the exception and the Parliament rejecting it. In the end, the agreement reached was to include provisions requiring implementing measures at national level or at EU level into the scope of administrative acts. e deletion of the proposed exemption of implementing measures had also been one of the requests of the ACCC when evaluating the Commission’s proposal.

current de nition, an administrative act must have been ‘adopted under environmental law’. A er the amendment, any administrative act that contravenes EU environmental law within the meaning of Article 2(1)(f) of the Regulation may be subject to review. at means that the internal review mechanism will also cover acts that have an adverse effect on the a ainment of the objectives of EU policy on the environment set out in Article 191 TFEU, even if they have been adopted in the implementation of policies other than the environment. 3) Finally, the need for the act to have ‘legally binding and external effects’ is changed, with the removal of the word ‘binding’. In the amended version, the act only needs to have legal and external effects. According to recitals 11-12 of the preamble of the amending Regulation, in order to ensure legal consistency, an act is to be considered to have legal effects, being subject to a request for review, in accordance with Article 263 TFEU, as interpreted by the CJEU. at means that the act in question must be intended to produce legal effects vis-à-vis third parties, regardless of its form. Preparatory acts, recommendations, opinions and other non-binding acts that do not have external effects, are not considered to constitute administrative acts.

e de nition of administrative omission is currently ‘any failure of a Community institution or body to adopt an administrative act’. Because of this, it became necessary also to amend the de nition of omission to bring it into line with the new de nition of administrative act (Article 2(1)(h)). According to the new de nition, ‘administrative omission’ means ‘any failure of a Union institution or body to adopt a non-legislative act which has legal and external eﬀects where such failure may contravene environmental law’. is means that it was also considerably broadened. b) Broadening of standing in the internal review

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review whether the restriction is justi ed or not. Another question is which rights can be invoked. e answer should be any rights granted by the EU e Aarhus Regulation only allows NGOs that legal order – because these are the ones that bind meet the criteria set out in Article 11 to make a rethe EU institutions and bodies – and not those granquest for internal review to an institution or body. ted by national law. e fundamental rights recoge ACCC considered this to be in breach of the nised by the EU Charter and the Treaties are incluAarhus Convention, which recognises standing for ded, but the wording of the provision appears to enany ‘member of the public’ to seek the review of an compass also the rights conferred by EU secondary act or omission that contravenes environmental law to individuals, in line with the case law of the law. CJEU – even if not related with environmental law. However, e Parliament and the Council the impairment of the right agreed to broaden the standing e agreed amendments must be caused by the alleged in the internal review procedure contravention of EU environbeyond NGOs, thus allowing otinclude a broadening of mental law. her members of the public to request internal reviews of admithe standing beyond Another question is how to innistrative acts under certain conterpret the need for the person ditions in two different cases NGOs in two cases to be ‘directly affected’ by the (Articles 10(1) and 11(1a)), conviolation of the right ‘in comsequently broadening the stanparison with the public at large’. ding before the CJEU to review is seems related to the conditions laid out in Artithe legality of the nal decision of the review procecle 263(4) TFEU that a person must demonstrate dure (Article 12(2)). to be ‘directly and individually concerned’ by an act not addressed to them in order to have standing beIn the rst case, any person may request the review fore the CJEU. However, recital 19 of the preamble if it demonstrates ‘impairment of their rights caused expressly rejects this connection. It goes on to say by the alleged contravention of Union environmenthat to avoid ‘actio popularis’, which is not required tal law’ and that ‘they are directly affected by such under the Aarhus Convention, the provision is inimpairment in comparison with the public at large’. tended to exclude members of the public having ‘an unquali ed right’ to request internal review. e e interpretation of this new provision raises a recital also gives examples: a person shall be consinumber of questions. e rst one is how to interdered to be ‘directly affected’ by the violation of the pret the expression ‘impairment of a right’. Accorright in comparison with the public at large when fading to recital 18 of the preamble of the amending cing ‘an imminent threat to their own health and saRegulation, it means members of the public should fety, or of a prejudice to a right to which they are endemonstrate ‘a violation of their rights’, which may titled pursuant to Union legislation’. ‘include an unjusti ed restriction or obstacle to the exercise of such rights’. is is somewhat helpful, e second scenario in which standing to request however many questions remain, including how to procedure

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change’. Although the examples given are of public interests related with the environment, the wording of Article 11(1a)(b) does not have that limitation. Another question here is how to interpret the need for the public interest to be ‘suﬃcient’ (to what? to whom? by whom?). As this mechanism allows any person to invoke a public interest to request a review, if he/she collects suﬃcient signatures, it is similar to a (collective) ‘actio popularis’. In fact, the standing rule does not require the group to demonstrate any speci c individual interest to request the review. is is somewhat contradictory with the express desire of the legislators to avoid ‘actio popularis’ mentioned in recital 19.

an internal review is broadened relates to members of the public who demonstrate ‘a sufficient public interest’. However, in this case, the request must be supported by at least 4,000 members of the public residing or established in at least ve Member States, with at least 250 members of the public residing or established in each of those Member States. is means that, in this case, standing of members of the public is not individual, but collective – they must collectively demonstrate the existence of a public interest and enough members of the public must support the request. It seems inspired by the EU citizen’s initiative, established in Article 11(4) TEU, which enables a group of citizens from different Member States to invite the Commission to bring forward legislative proposals. However, it is different because, in this case, the citizens are not proposing legislative action but are reacting to a nonlegislative act or omission. It is, then, more similar to a public petition.

e diﬀerence between both cases concerning standing of members of the public seems to be that while the rst one involves qualitative criteria, the second one establishes a mix of qualitative and quantitative criteria.

ere is no need to demonstrate that the act or omission violates the public interest, but only that such interest exists and is ‘suﬃcient’. In order to understand what is ‘a suﬃcient public interest’, one can resort to recital 20 of the preamble that gives as examples a ‘public interest in preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources, or in comba ing climate

In both cases, the members of the public must be represented by an NGO or a lawyer authorised to practise before a court of a Member State. is, according to recital 21, is to ensure that the review requests meet the legal criteria and ‘put forward facts or legal arguments of suﬃcient substance to give rise to serious doubts as to the assessment made by the Union institution or body’. e new criteria giving standing to members of the

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me administrative act or omission, the institution or body may combine the requests and treat them as one (Article 11(2)); 5) Union institutions and bodies will publish all requests for internal review, as well as all nal decisions on those requests without delay (Article 11a);

public other than NGOs will only be applicable 18 months a er the entry into force of the amending Regulation (Article 2 of the amending Regulation). is will allow the EU’s institutions and bodies to prepare for the changes ahead, but it also means that only a er that period will the EU be in full compliance of the Aarhus Convention.

6) e institutions and bodies may establish online systems for receipt of requests and may require that all requests for internal review requests Besides these two signi cant changes to the Aarhus shall be submi ed via their Regulation, the legislators online systems (Article agreed to introduce some other Certain procedural 11a). amendments. c) Other amendments to the Aarhus Regulation

deadlines and rules

e legislators also used the recitals of the amending Reguon the handling lation to respond to some other concerns. For example, in resof cases are also subject ponse to requests by several NGOs regarding costs of the to amendment procedure, the institutions agreed on the introduction of a 2) e time limit for the EU referral on this ma er – there was no agreement on institutions and bodies to answer to a request was the introduction of a speci c provision. Recital 4, realso extended from 12 weeks a er receipt of the ferring to Article 9(4) of the Aarhus Convention, request to 16 weeks a er the expiry of the eight says that court proceedings under the Aarhus Reguweeks deadline (Article 11(2)) and from 18 lation are not to be prohibitively expensive, and weeks from receipt of the request to 22 weeks calls on the EU’s institutions and bodies to only rea er the expiry of the eight weeks deadline (Artiquest reimbursement for reasonable costs in such cle 11(3)); proceedings. 3) e EU institutions and bodies may dismiss a Also answering requests by the NGOs, recital 15 rerequest for review not only when it is clearly uncognises that the scope of review proceedings substantiated, but now also when it is considered should cover both the substantive and procedural lemanifestly unfounded (Article 11(2)); gality of the act challenged. 4) In case of multiple requests for review of the sa1) e deadline to request the internal review was extended from six to eight weeks a er the administrative act was adopted, noti ed or published (Article 11(1));

11. As of 31 August 2021, there were 1,250 signatures. See here. 12.Regulation (EU) 2021/522 of the European Parliament and of the Council of 24 March 2021 establishing a Programme for the Union’s action in the eld of health (‘EU4Health Programme’) for the period 2021-2027, and repealing Regulation (EU) No 282/2014.

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e agreed amendments do not solve the problems regarding review of State aid measures taken by the Commission

What remains unresolved?

Final thoughts

In a separate compliance case, ACCC/C/ 2015/128, the ndings for which were delivered on 17 March 2021, the ACCC found that the EU was in breach of the Convention because of the failure to provide access to administrative or judicial procedures for members of the public to challenge decisions on State aid measures taken by the European Commission. is was not part of the Commission’s legislative proposal, however it was included in the ACCC assesment of the proposal. is led the Parliament to propose the suppression of the exclusion of State aid from the de nition of administrative acts. At the trilogue of 12 July 2021, in reaction to strong opposition from the Council, the Parliament nally agreed to drop this proposal subject to a statement of the Commission on the issue. In this statement, as communicated to the ACCC, the Commission is expected to commit itself to complete and publish its assessment of the ma er by the end of 2022 and, if appropriate, to come forward by the end of 2023 with measures to address the issue, in light of the obligations of the EU and its Member States under the Aarhus Convention and taking into account the rules of EU law concerning State aid.

In light of the co-legislators’ agreement on an amending Regulation communicated to the ACCC, it issued a Report to the MoP stating that, provided that the amendment to the Aarhus Regulation is enacted in that form prior to the seventh session of the MoP, the EU could be considered to have fully addressed the recommendations in the ndings of communication ACCC/C/2008/32. at would resolve the question of the compliance of the EU with the Aarhus Convention. However, case ACCC/C/ 2015/128 remains to be resolved. Will it lead to another revision of the Aarhus Regulation? Only time will tell.

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News Highlights Week 13 to 17 Sept 2021

ECtHR rejects request for interim suspension of Greek law on compulsory COVID-19 vaccination for healthsector staﬀ

Action seeking annulment before General Court: conditional marketing authorisation of P zer-BioNTech COVID-19 vaccine

Monday 13 September

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e European Court of Human Rights decided to reject the requests for interim measures submi ed by the applicants in the cases Kakaletri and Others v. Greece (application no. 43375/21) and eofanopoulou and Others v. Greece (application no. 43910/21).

Oﬃcial publication was made of an action for annulment brought before the General Court in Faller and Others v Commission (T-464/21) against the European Commission’s decision amending the conditional marketing authorisation for the Comirnaty COVID-19 mRNA V vaccine, a medicinal product for human use: namely the P zer‒BioNTech vaccine.

Ombudsman nds no maladministration by Commission in refusal to provide access to documents concerning rights of volunteer re ghters in France

Banks seek annulment of the Commission’s decision sanctioning the applicants for their participation in European Government Bonds-trading cartel

Monday 13 September

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e European Ombudsman decided in Case 1291/2021/DL that the Commission’s refusal to disclose access to documents concerning the rights of volunteer re ghters in France pursuant to a recent CJEU ruling does not constitute maladministration.

Internal Market Scoreboard: Iceland, Liechtenstein and Norway Monday 13 September

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e recent biannual Scoreboard was published, showing Liechtenstein improved in the number of directives it has transposed, whereas Iceland and Norway have seen the opposite trend. It also shows the highest number of infringement proceedings since 2014, and includes an overview of dra technical regulation noti cations and nal texts submi ed to the EFTA Surveillance Authority.

Monday 13 September

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ree actions brought before the General Court by Bank of America and Bank of America Corporation (T-456/21), UniCredit and UniCredit Bank AG (T-453/21) and Portigon (T-462/21) against the European Commission were published in the Oﬃcial Journal.

Action brought against the Commission by Germany over decision to consider part of the scheme to support cogeneration as State aid Monday 13 September

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Oﬃcial publication was made of an action brought by Germany before the General Court (T-409/21) seeking partial annulment of the Commission’s decision (SA.56826), to the extent that it nds that certain measures of the German scheme ‘KWKG 2020′ related to the support for cogeneration constitute State aid.

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New formation of Chambers in the General Court Monday 13 September

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Following the death of Judge Berke on 1 August 2021, the General Court reassigned his cases to diﬀerent Judges and amended its Decision on the formation of Chambers for the period from 2 September 2021 to 31 August 2022.

Action against European Public Prosecutor’s Oﬃce for unlawful appointment of prosecutors published Tuesday 14 September

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Oﬃcial publication was made of the action for annulment (T368/21) brought against the European Public Prosecutor’s Oﬃce, challenging the Decision by which the College of the EPPO appointed 15 European Delegated Prosecutors (EDPs) nominated by Italy.

Two Irish banks sanctioned by the European Central Bank for miscalculating their capital needs Tuesday 14 September

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e European Central Bank sanctioned Allied Irish Banks plc and its subsidiary EBS dac with penalties of 420,000 euros and 195,000 euros respectively, for miscalculating their riskweighted assets, which aﬀected intragroup equity exposures.

European Court of Auditors observes that the EU returns system for irregular migrants is awed Tuesday 14 September

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e European Court of Auditors published a report on the EU’s cooperation with third countries on returns and readmission of irregular migrants from the EU to their home countries: the EU achieved limited progress in concluding readmission agreements with third countries and ensuring third countries comply with obligations in practice.

EIOPA’s criteria to assess independence of supervisory authorities Tuesday 14 September

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e European Insurance and Occupational Pensions Authority published in a report the criteria it applies to assess the independence of supervisory authorities, in order to ful l its obligation to ensure legitimacy and credibility of the process under the newly revised EIOPA Regulation.

General Court nds Commission incorrectly assessed certi ed reductions in CO2 in Decision approving ‘ecoinnovation’ used by Daimler as a technology Wednesday 15 September

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By its ruling in Daimler v Commission (T-359/19), the General Court annulled Commission Implementing Decision 2019/583 in so far as it concerns the average speci c emissions of CO2 and the reductions in CO2 emissions, achieved by eco-innovations, as calculated for Daimler.

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Withdrawal of Italian motorway investment plan leads to General Court’s dismissal of State aid annulment action Wednesday 15 September

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e General Court dismissed the State aid case INC and Consorzio Stabile Sis v Commission (T-24/19). It found that there was no interest in continuing legal proceedings as the Member State had withdrawn its aid plans, and thus there was no need to adjudicate on the annulment of the Commission Decision in question.

e Council announces three vacancies for the position of Director-General Wednesday 15 September

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e Council of the European Union announced it was looking for three Director-Generals to join the following departments in Brussels: Agriculture, Fisheries, Social Aﬀairs and Health (DG LIFE); Economic and Financial Aﬀairs (DG ECOFIN); and DG Competitiveness and Trade.

Commission approves France’s 3 billion-euro injection to support companies impacted by COVID-19

General Court: Action against Decision approving French aid for oﬀshore wind farms dismissed as inadmissible

Wednesday 15 September

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e European Commission decided that a French recapitalisation scheme with a 3 billion euro fund to assist companies aﬀected by the COVID-19 pandemic is compatible with the EU State aid rules, speci cally under the State aid Temporary Framework that is in place to assess that type of aid.

e General Court ruled in case CAPA and Others v Commission (T-777/19) that the action for annulment against the Commission Decision approving French’s proposed State aid for oating wind farms is inadmissible because the applicants are not ‘interested parties’.

Court of Justice: Granting of a perpetual so ware licence can be characterised as the ‘sale’ of ‘goods’ within the meaning of the Commercial Agents Directive

ECtHR rejects rst-ever request for an advisory opinion under Article 29 of the Oviedo Convention

ursday 16 September

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In e So ware Incubator (C-410/19), the Court of Justice found that the supply of computer so ware by electronic means accompanied by the grant of a perpetual licence can be characterised as the ‘sale’ of ‘goods’ within the meaning of the Commercial Agents Directive 86/653/EEC.

ursday 16 September

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e Grand Chamber of the European Court of Human Rights issued a decision rejecting the rst-ever request for an advisory opinion submi ed under Article 29 of the Convention on Human Rights and Biomedicine (the Oviedo Convention).

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Commission calls on Member States to improve safety of journalists and strengthen media freedom ursday 16 September

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e Commission presented its rst ever Recommendation to improve the safety of journalists and other media professionals, both online and oﬄine, who due to their work face threats, a acks or even murder.

Court of Justice: State aid linked to excess pro t can stem from a ‘consistent administrative practice’ demonstrated by a sample of tax rulings ursday 16 September

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e Court of Justice has handed down its judgment in Commission v Belgium and Magnetrol International (C-337/19 P), clarifying that the concept of an aid scheme includes a consistent administrative practice of authorities in a Member State, and that such practice can be demonstrated through the examination of a sample of tax rulings issued by a Member State.

Public broadcasting activities nanced by subsidies from the State budget are not subject to VAT according to Court of Justice ursday 16 September

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In Balgarska natsionalna televizia (C-21/20), the Court of Justice concluded that: (i) a public television broadcaster’s activity, subsidised by the State, is not a transaction subject to VAT and is not be used to determine the right to deduct input VAT; and (ii) the broadcaster has the right to deduct the VAT for the goods or services acquired for the purposes of taxable transactions, independently of the method of nancing of the said purchases.

Jurisdiction in internet libel cases possible for several Member States’ courts under certain conditions: AG Hogan’s Opinion in Gt ix ursday 16 September

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e Court of Justice was advised by Advocate General Hogan in the context of a case of libel on the internet and determination of where the damage occurred. His proposal is for it to rule that the courts in each Member State where content published online is or was accessible have jurisdiction under Article 7(2) of Jurisdiction Regulation 1215/2012 (subject to conditions).

Appeal of FVE Holýšov and others against General Court’s State aid ruling rejected by Court of Justice ursday 16 September

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e Court of Justice dismissed the appeal brought by FVE Holýšov I s. r. o. and others against the General Court’s ruling in T-217/17 (C-850/19 P) relating to a Commission Decision on privately nanced renewable energy schemes constituting State aid.

European Court of Auditors Report on Commission’s post-programme surveillance of Member States that receive nancial assistance Friday 17 September

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e European Court of Auditors (ECA) published a Special Report nding that the post-programme surveillance activities examined by the European Commission of ve Member States that received nancial support a er the 2008 nancial crisis were appropriate, but noted also that eﬃciency was hampered by unclear objectives and insuﬃcient streamlining and focus on implementation.

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AG Koko : publication of a ‘market rumour’ by a journalist can be considered an unlawful disclosure of ‘inside information’ under certain circumstances Friday 17 September

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Advocate General Koko delivered her Opinion in the Grand Chamber case A. – Other party: Autorité des marchés nanciers (C302/20) concerning the prohibition on disclosing ‘inside information’ and the limits of that prohibition under the Market Abuse Directive, the Market Manipulation Directive, and the Market Abuse Regulation.

Insights, Analyses & Op-Eds e UK failed to ful l its obligation to combat undervaluation fraud, maintains AG Pikamäe

e FO v Ministère public (Sanctions extraterritoriales) case : revisiting the territoriality principle

by Ondřej Serdula

by Nuno Cunha Rodrigues

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Analysis of the Opinion in the Grand Chamber case Commission v UK (C-213/19) concerning the undervaluation fraud case of textile and footwear imports from China to the UK, and whether the UK failed to ful l its obligations under EU law: a very important case with ‘possible implications for the other Member States and for the system of traditional own resources as a whole’.

Op-Ed on the Court of Justice’s judgment in Ministère public (Sanctions extraterritoriales) (C-906/19), a preliminary ruling concerning the possibility and limits for the imposition by a Member State of sanctions for road transport infringements in other Member States.

Defendants’ right to be heard vs. nality of administrative oﬀence ndings – the Court of Justice’s judgments in FN and Adler”

Republic of Moldova v Komstroy (C741/19): what next for the Energy Charter Treaty?

by Allison Östlund

by Michael De Boeck

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Op-Ed on the ‘much anticipated’ Grand Chamber judgment Republic of Moldova v Komstroy (C-741/19), in which ‘the Court of Justice at last addressed the relationship between the EU legal order and the Energy Charter Treaty’, and the Court’s ‘detour’ nding EU law precludes the intra-EU application of investor-State dispute se lement (ISDS) under that Treaty.

Op-Ed on FN and Others (C-546/18) relating to the national imposition of nes for breaches of procedures for acquiring majority shareholding pursuant to the Takeover Bids Directive 2004/25 and the Transparency Directive 2004/109, considering the ‘implications for respect of the rights of defence that reach far beyond the auspices of EU nancial law.’

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Some thoughts on the new Notice on the enforcement of State aid rules by national courts by Fernando Pastor-Merchante

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Court of Justice classi es donation mortis causa as an agreement as to succession and excludes choice of applicable law

Op-Ed on the European Commission’s newly published Notice on the enforcement of State aid rules by national courts focusing on the private enforcement of State aid law, with re ections on incentives to tackle unlawful State aid, obstacles arising under national law, and a word of caution on interference and constitutional problems.

by Anna Wysocka-Bar

e Conference on the Future of Europe: towards a new version of the European venture?

Completing the un nished Achmea business in the Komstroy case: farewell to intra-EU ECT-based investment arbi-

by Julia Fernández Arribas

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Op-Ed on the Court of Justice’s ruling in UM (C-277/20), ‘in which, for the rst time, it sheds light on doubts concerning the applicability of the EU Succession Regulation to donations mortis causa’.

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by Alessandro Monti and Ma eo Fermeglia

Insight on the Conference on the Future of Europe, which oﬀers an opportunity for Member States, EU institutions, civil society and citizens to re ect on the future of the EU, and for the EU to consider reform of its governance model.

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Op-Ed on the Court of Justice’s Grand Chamber judgment in Republic of Moldova v Komstroy (C-741/19). e authors argue that the judgment, which pursues the goal of halting the ow of intra-EU legal disputes under the Energy Charter Treaty (ECT), does so in a controversial fashion from an international law perspective.

Judgment in the XY case regarding the payment of interest in case of refund of taxes by Darya Budova

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Analysis of the recent judgment in XY v Hauptzollamt B (Réduction scale facultative) (C-100/20), where the Court of Justice con rmed that ‘delay interest’ should be paid in case of a refund of taxes that were due on the basis of a national provision implemented based on an optional provision of a Directive.

Nº71 · SEPTEMBER 18, 2021

Weekend

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Library - Book Review

By Maddalen Martin Arteche

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Cecilia Rizcallah

Le principe de con ance mutuelle en droit de l’Union européenne. Un principe essentiel à l’épreuve d’une crise de valeurs Review of a book in which, for ‘the rst time, the principle of mutual trust is conceptualised in the legal literature’, and which proposes ‘a number of methodical corrections’ to national authorities in charge of applying the mutual trust principles: but which also stretches to ‘the debate about the current crisis of EU values’.