Weekend Edition Nº72 by eulawlive

Nº72

SEPTEMBER 25

2021

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GIULIO SOANA

JEFFERY ATIK AND XAVIER GROUSSOT

THE DRAFT EU AI REGULATION: STRATEGIC BICAMERALISM IN THE SHADOW OF CHINA

JURISDICTION IDENTIFICATION UNDER THE EPPO REGULATION. A NEUTRAL CHOICE?

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The draft EU AI Regulation: Strategic bicameralism in the shadow of China 1

Jeﬀery Atik and Xavier Groussot

cently released dra EU Arti cial Intelligence Regulation (3) (hereina er ‘AI Act’) constitutes the latest round in a strategic give-and-take with the U.S. that can be characterised as ‘strategic bicameralism’.

1. Bicameralism in the shadow of China

e United States and Europe share a common adversary in establishing global technology rules: China’s ambitions must be checked and China’s vision By use of the term strategic bicameralism we descrifor a surveillance society should be rejected. e be: United States’ (U.S.) anchoring of its Arti cial Intelligence (AI) policy around competition with Chi- “ e joint adoption by the na is openly declared in the U.S. and the EU of rules and guiMarch 2021 Final Report of the By seizing the initiative in delines for the transatlantic spaNational Security Commission ce (and eﬀectively the global on Arti cial Intelligence. e robot regulation, the EU space, China excluded).” Europeans are not quite so belliproposes two outcomes cose, and Europe’s initial measures in the AI space display li le to the U.S., one cooperative - “A process wherein the form of legislation is rst adopted by competitiveness concerns. e the EU (by analogy to initiaand one not shared challenge for the U.S. ting chamber of a bicameral leand the EU – at least from the gislature) and then ‘proposed’ U.S. perspective − is coordinato the U.S. (the responding chamber) for rejecting their respective initiatives in AI regulation in a tion or reconciliation.” way that best opposes China’s ascendancy. - “Engagement within transatlantic facilities for exchange and accommodation, such as the newly established Trade and Technology Council (4)”.

Beyond meeting the China threat, the Americans and Europeans continue to engage in regulatory conict within the technology policy space. e re-

1. Professor of Law at Loyola Law School in Los Angeles and Guest Professor at the Faculty of Law at Lund University. 2. Professor of Law at the Faculty of Law at Lund University. 3. European Commission, Proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on arti cial intelligence (Arti cial Intelligence Act) and amending certain Union legislative acts (COM(2021) 206 nal). 4. e White House, U.S. – EU Summit Statement, June 15, 2021.

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lation is pointedly extra-territorial, much as was the case with the General Data Protection Regulation (GDPR). e experience of the GDPR − which smacks American sensibilities as European unilateralism − serves as backstory to the emerging treatment of AI.

- “Adaptation of proposals into a law of more general application supported by mutual consensus – and with the a achment of legitimacy.” By seizing the initiative in robot regulation, the EU proposes two outcomes to the U.S., one cooperative (strategic bicameralism) and one not. Within this legislative dance, the EU has asserted the initiative − as it did previously with regards to privacy rights on the web. e privilege of a legislative organ to initiate law-making is frequently more powerful than the subsequent right of the complementary organ to reform, endorse and ratify.

e Biden Administration has welcomed the EU’s AI proposals. Congress' a ention may lie elsewhere − there seems to be no sense of urgency for AI regulation in the U.S. e current AI regulatory landscape in the U.S. is correctly described as fragmented and accidental − much as is the case for privacy protections.

e Europeans are acting in a largely unoccupied regulatory space − and can hardly be criticised for doing so. AI poses public concerns that are appropriate grounds for regulatory responses. But Europe does not now act merely to protect its economy, its society and its people. Rather, the EU is se ing AI rules intentionally to serve as transatlantic if not global standards. e design of the proposed AI Regu-

e objection to European gamesmanship voiced here is not sourced in disagreement about the substance of the EU’s approach or the values that underlie it. Rather we note that the EU's seizing of the right of initiative presents Europe with (arguably) outsized in uence on the eventual emergent AI policy space spanning Europe and the U.S.

e EU is se ing AI rules intentionally to serve as transatlantic if not global standards

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provisions that be er t the revealed policy considerations. If GDPR is any guide, a 'Second AI Regulation’ – in the absence of cooperation − will likely be more comprehensive and even more restrictive (or protective).

2. Non-cooperative bicameralism Bicameralism operates both to generate and to resolve con icts – resulting (when successful) in a legislative output that commands consensus and enjoys legitimacy. Bicameralism also operates as a brake – one chamber cannot unilaterally impose its regulatory desires. We see these trends in the case of transatlantic AI (and other technology) policies.

e 'strategic bicameral' view we are advancing here is not formal. Ultimate legislative disposition of the dra Regulation within the EU’s legislative institutions is not strictly necessary before consideration by counterpart American institutions − formal and In the end, does it ma er whether the EU asserts the within civil society − can begin. U.S. responses durst bite at the legislative apple? e political intering the preliminary stage can helpfully signal chanrests in play diﬀer broadly between the EU and the ges, ampli cations and deletions. US. Much as is the case in the prie bicameral model presumes vacy domain − where U.S. based that meaningful legislation will ulplatforms are the regulatory tare political interests timately require some accord gets of the GDPR − AI may well with the U.S. Once the EU be dominated by U.S. rms. Gooin play diﬀer broadly adopts a de nitive AI Regulation gle − a favorite object of Euro(assuming the U.S. does not decipean scrutiny − is clearly a global between the EU de to 'race' and pre-empt the EuroAI leader. Notwithstanding Euroand the U.S. pean initiative by enacting its pean ambitions in the AI space, own legislation in the eld), the European AI leaders are fewer U.S. may be prodded to react to and harder to identify. e tenor the cards laid on the table. of the proposed AI Regulation can be seen as protecting Europeans against aggressive and under-supervised American corporate interests. No doubt there are many Americans who welcome the AI initiative as they will bene t from the extension of the Regulation's protective shield beyond European borders.

Using national examples of bicameral legislative processes, this might resemble French-style nave e passage of the regulation onto the U.S. Congress for further action, which would signal its respective agreements and disagreements in its counterpart legislation. Or the U.S. might engage the Europeans in a reconciliation of its objections through a conference-type process. A conference-style resolution of substantive policy disagreements would be conducted between the respective executives of the U.S. and Europe. A 'legislative conference' account can be advanced for the two now-discarded ' xes' to the GDPR accorded between the European Commission and the U.S. executive: the Safe Harbor and

e proposed AI Regulation has already a racted criticism for its incomplete coverage. It will likely be signi cantly re-worked as it winds its way through the EU's legislative process. And no doubt it will come to be known eventually as the ‘First AI Regulation’, as it will be revised. It is perhaps an underappreciated virtue of EU law-making that pioneering laws are frequently replaced top-to-bo om by new

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At least in the GDPR instance, the Court of Justice showed itself to be an enemy of bicameralism

Privacy Shield accommodations. ese supplements to the GDPR were not legislative in character (when viewed from a national constitutional perspective), but rather took the form of bilateral agreements. at said, it might be fairly asserted that the eﬀective rule for the transatlantic space (prior to the Court of Justice’s striking down of both of these accords) was the legal constellation formed by the GDPR together with the Treaty x − a species of joint legislation emerging through a form of exchange. e U.S. may respond similarly to an eventual AI Regulation enacted by the EU, by engaging in a dialogue that molds (in part) the stand-alone EU law into a common position.

3. Reliability in transatlantic lawmaking In the end, the GDPR is not a hopeful story for successful strategic bicameralism. e Court of Justice struck down two generations of U.S. / EU agreements. In so doing, the Court eﬀectively eliminated what might be described as a jointly enacted regime and replaced it with the earlier (preliminary and unilateral) EU output. At least in the GDPR instance, the Court of Justice showed itself to be an enemy of bicameralism. In Schrems I, the Court struck down the Safe Harbor Agreement on the basis that it did not meet an adequate standard of protection of human rights. For the Court, the U.S. had to guarantee a level of protection of fundamental rights and freedoms that were essentially equivalent to that guaranteed by the EU. A new Agreement − the Privacy Shield − was then negotiated to govern transatlantic data transfer. is transatlantic agreement was invalidated by the Court of Justice last year in Schrems II following a logic similar to that it followed in Schrems I.

Note that in the operation of ordinary bicameralism the absence of buy-in from the Responding Chamber (here, by analogy, the U.S.) renders the proposed legislative of the Initiating Chamber a nullity. at of course has not been the outcome in the GDPR saga (so far); as things stand, the uncompromised GDPR is eﬀective throughout the transatlantic space.

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hing ‘privacy-approach’ of the GDPR. e dra AI Regulation is much more centralized than the GDPR, with the creation of a powerful European Arti cial Intelligence Board. is AI Board will facilitate the enforcement of the Regulation by issuing recommendations and opinions to the Commission and will facilitate cooperation through the development of harmonized standards.

Is the same fate destined to transatlantic agreements adopted in the wake of the AI Regulation? Not necessarily so, since the key tenets of the future AI Regulation (already visible in the dra proposal) are very diﬀerent from those of the GDPR. e GDPR is based on the protection of data privacy by a decentralized network of national authorities and features an integrated one-stop-shop mechanism. e European approach to AI is multi-faceted and much more cooperative.

4. New sites for transatlantic technology law-making

ree conceptual tenets are governing the regulatory spirit of the proposed AI Regulation: Trust, Security and Rights. e need to establish an ecosystem of trust imbues the whole dra document and guides a risk-based pyramidal approach based on four layers: unacceptable risk, high risk, limited risk and minimal risk. e higher the risk, the lower the trust. is ecosystem of trust helps to build a secure environment, since it is only in a secure environment that AI can be seen as a force for progress. e enemy is here very clear: digital authoritarianism and the countries associated to it.

e European AI approach is not to be assessed in a vacuum. It must also be appraised in the light of new transatlantic trade cooperation heralded by the combination of two new political developments: the commencement of the Biden administration in the US and the will of the EU to adopt a more assertive approach to global trade issues. A new transatlantic alliance based on shared values and interests, to borrow the words of President Von der Leyen, is in fact burgeoning. In December 2020, a joint U.S. / EU Trade and Technology Council ( C) was proposed by EU leadership as part of a new transatlantic agenda. e answer came quickly from the US side; on 15 June 2021 the establishment of the C was announced during the U.S. / EU summit. e C has three main goals: create new global trade standards for emerging technology, develop democratic values in the digital world and oﬀer possibilities for the U.S. and the EU to collaborate on cu ing-edge research and development. e C clearly re ects the necessity to team-up in order to push back on the ‘Beijing eﬀect’ (5) and to check China’s asserted role as standard-and-value se er in AI; the C

Finally, a human rights-centric approach (also visible in the GDPR) gives eﬀect to the regulatory spirit of the dra AI Regulation: one linked to the democratic and liberal values of Europe. e EU’s AI approach has a lot in common with U.S. interests and values. And so it contrasts with the speci c and clas-

e dra AI Regulation is much more centralized than the GDPR

5. Ma hew Erie and

omas Streinz,

e Beijing Eﬀect: China’s ‘Digital Silk Road’ as Transnational Data Governance, see here.

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seeks instead to promote a human-centric and liberal model of digital governance in AI. Overall, the C promotes cooperation between the U.S. and the EU and thus constitutes a creuset for strategic bicameralism. Article 114 of the EU’s foundational instrument authorizes the EU legislative bodies to act with regards to product regulation and other ma ers with a European dimension. It does not limit the EU from projecting the reach of its rules beyond the European territory. Europe has global law-making ambitions in many elds beyond the technology space. A spate of recent EU initiatives focuses on the strategic impact of EU measures; Europe addresses both China and the U.S. in its contemporary law-making. e U.S. is discovering that laissez-faire policies are nonstarters in a world where the EU is willing to seize the regulatory initiative. e U.S. also wishes to leave a mark on emerging global rules; it too maintains a new ba ery of strategic trade programs. Strategic bilateralism may emerge as the be er route to accommodate both U.S. and European desires and to reduce con icts where they exist. Strategic bilateralism further presents the possibility of building a transatlantic legal bulwark against the ambitions of China in the tech space.

Strategic bilateralism may emerge as the be er route to accommodate both U.S. and European desires and to reduce con icts where they exist

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Jurisdiction identiﬁcation under the EPPO regulation. A neutral choice? Giulio Soana

Eminently, the identi cation of the competent jurisdiction is far from being a neutral choice. Furthermore, the unpredictability of the trial’s location hampers the ability of the defendant to correctly prepare its defence.

1. Introduction

e European Public Prosecutor’s Oﬃce (EPPO) holds the promise of revolutionising the EU’s antifraud eﬀorts by nally providing it with ‘the stick’ it had been lacking. However, its correct functioning may be tainted by one of the European criminal legislation's original sins: the lack of clear-cut Crime has become ontocriteria to solve con icts of jurisdiction. If the pervasive digitalilogically global as techsation of our societies already imnology has blurred the plies that purely national crime is increasingly a remnant of the boundaries of past, the territorial scope and human action the competencies of the EPPO will most probably cause the multiplication of transnational investigations.

All in all, the jurisdiction allocation rule introduced by the EPPO Regulation seems to breach the defendant's rights to a fair trial, as enshrined by national constitutions and supranational legislation. It also may hinder the EPPO’s correct functioning by exposing its proceedings to legal challenges and reputational backlashes.

2. Positive Con icts of Jurisdiction and European Law

In the absence of a pre-established European framework, the EPPO Regulation introduces a bespoke rule for jurisdiction allocation (2). e vagueness of the criteria identi ed by this rule and the provision of a unilateral power of the College to choose the competent jurisdiction may expose the EPPO to legal challenges and claims of unconstitutionality.

To correctly frame the problem of jurisdiction it is necessary to take a step back: the identi cation of the competent jurisdiction is a problem that cannot be simply restricted to EPPO.

1. Ph.D. Candidate in Law at KU Leuven and Luiss University. 2. See section 3.1 below.

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the eﬀectiveness of criminal prosecution. is trade-oﬀ has resulted in a stalling that has led many States to unilaterally expand their power to prosecute and punish (5).

e pervasive development of technology has profoundly aﬀected the structure of criminality, which has developed from a national concern to a transnational issue. Crime has become ontologically global as technology has blurred the boundaries of human action (3), throwing into question the sustained ability of States to enforce laws.

Such global situation is particularly severe within the EU given its economic integration and the permeability of national borders (6). e EU, notwithstanding a clear competence in this eld (7), has been unable to provide for clear-cut criteria to solve con icts of jurisdictions (8).

e crux of this problem is that criminal procedure codes were developed at a time when national crime was the rule and transnational crime the exception, leading to the recognition of territoriality as the main criteria to identify the competent jurisdiction. e implementation of this territoriality principle in an IT-dominated world has caused a surge in positive con icts of jurisdiction (4).

is has led to the adoption of merely conciliative solutions. Eminently, Council Framework Decision 2009/948 on the prevention and se lement of conicts of jurisdiction, at Article 10, provides for a general duty of States to ‘enter into direct consultations to reach consensus on any eﬀective solution (…), which may, where appropriate, lead to the concentration of the criminal proceedings in one Member State’. is broad and generic formula falls short

Faced with the emergence of global technologies, States are confronted with a trade-oﬀ between the need to preserve their exclusive power to command within their territories and the need to guarantee

3. Kader-Minnaar, ‘Cybercrime Investigations: Cyber-Processes for Detecting of Cybercriminal Activities, Cyber-Intelligence and Evidence Gathering’, Acta Criminologica: A ican Journal of Criminology & Victimology, 2015, 5, 72. 4. Schwartz, ‘Legal Access to the Global Cloud’, Columbia Law Review, 118/6, 2018, 1741. 5. Rahman, ‘Legal Jurisdiction over Malware-Related Crimes: From eories of Jurisdiction to Solid Practical Application’, Computer Law & Security Review, 28/4, 2012, 413. 6. Panzavolta, ‘Choosing the National Forum in Proceedings Conducted by the EPPO: Who Is to Decide?’, in Bachmaier-Winter, (eds.), e European Public Prosecutor’s Office. Challenges Ahead, Springer, 2018, 58. 7. Art. 82 TFUE. 8. Giuffrida, e European Public Prosecutor’s Office: king without kingdom? CEPS Research Report No 03, 2017, 26.

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the defendant’s rights. Also, given the political nature of criminal jurisdiction, a shaky rule may expose the Oﬃce to backlash.

of providing guidance on how to solve con icts and simply resorts to the traditional bilateral model. While this solution, or rather lack of solution, generates problems for the prosecuting authorities, it also hampers the defendant’s ability to structure its defence, participate in the trial and correctly understand the judicial framework. Language barriers, territorial distance, and overwhelming costs reduce the equality of arms between defence and prosecution, potentially imperiling the right to a fair trial.

3. 3.1.

Finally, as not all Member States are members of the EPPO, solid rules must be established to draw a line between participating and non-participating jurisdictions. Indeed, if non-participating prosecutors were to claim jurisdiction, only a strong rule could reject such a claim given the above-mentioned lack of alternative rules for the resolution of positive conicts of jurisdiction in Europe.

As not all Member States are members of the EPPO, solid rules must be established to draw a line between participating and non-participating jurisdictions

e EPPO Regulation e General Criteria

Given the transnational scope of EPPO’s jurisdiction, and the provision, by Article 22(1) of the EPPO Regulation, of a special jurisdiction for VATrelated fraud only in cases involving two or more States, jurisdiction allocation is a crucial issue for the functioning of the Oﬃce. Transnational cases are bound to arise, and a faulty rule for jurisdiction identi cation may expose the EPPO to judicial hurdles, both at the national and supranational level. As mentioned above, without a clear-cut rule, national courts may reject the EPPO’s decision based on constitutional principles and international courts may consider this lack of legal certainty a breach of

Against this background, the EPPO Regulation provides for two main criteria for jurisdiction allocation with a series of corrections. Article 36 on the ‘prosecution before national courts’ refers to the rules provided by Article 26 for the investigative phase. is provision sets out two main alternative criteria and three subsidiary ones.

Jurisdiction allocation is a crucial issue for the functioning of the Oﬃce

In case of a single offence, the Member State where ‘the focus of the criminal activity is’, shall handle the case, while in case of multiple offences the competent delegated prosecutor shall be the one where ‘the bulk of the offenses has been commi ed’.

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ese rst criteria already expose an interpretative problem as both ‘focus’ and ‘bulk’ are vague and general terms (9). First, it is difficult to understand what constitutes the focus of a crime: the perpetrator(s), the victim(s), etc. Even if one of these criteria was chosen as prevalent, it is hard to understand whether the focus should be, for example, where most perpetrators are or where the centre of the criminal organisation is (10). Similarly, the term ‘bulk’ could be intended in a quantitative sense, meaning the highest number of offences, or in a qualitative one, meaning where the most serious offences have been perpetrated.

While the parameters provided seem to be in line with the needs of the defendant’s protection, and in particular to, as much as possible, allow the proceedings to take place in the nearest jurisdiction – that is the place of his habitual residence - or the jurisdiction he best knows and understands – the one of his nationality - the possibility to freely choose by the Permanent Chamber seems quite troubling. is is due to the fact that prosecutors represent one side of the judicial spectrum and have a clear interest in the successful outcome of their case. Also, in most jurisdictions, they are a direct emanation of the executive power – thus not having the same guarantees of

Article 26 moves on stating that the EPPO’s Permanent Chamber can deviate from the abovementioned criteria when ‘duly justi ed’. To decide on this deviation the Chamber is given three parameters in hierarchical order: (a) the place of the suspect’s or accused person’s habitual residence; (b) the nationality of the suspect or accused person; and (c) the place where the main nancial damage has occurred.

independence provided for judges. And, while it is true that under Article 6 of the EPPO Regulation prosecutors are deemed to be independent and to act in the sole interest of the EU, their partisan role remains as, in adversarial proceedings, they are purported to represent their side of the processual truth. What is most important for the present re ection is that such prosecutors’ power of choice is not only

9. Giuffrida, e European Public Prosecutor’s Office, cit., 18; Luchtman, ‘Forum Choice and Judicial Review Under the EPPO’s Legislative Framework’, in Geelhoed-Erkelens-Meij (eds.), Shi ing Perspectives on the European Public Prosecutor's Office. TMC Asser Press, 2018, 157. 10. Panzavolta, ‘Choosing the National Forum in Proceedings Conducted by the EPPO’, cit., 76–78.

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is lack of coherence is further emphasised by the fact that the crimes the EPPO is called on to prosecute are provided by a Directive (13). erefore, while all crimes have a common thread, the gurae criminis may diverge not only in their content but also in their punishment, as the Directive mostly provides for minimum punishments or for a general duty to criminalise, leaving certain room for Member States to determine the exact punishment. In this sense, choosing a jurisdiction over another may result in harsher punishment or the ascription of slightly diﬀerent crimes.

provided for the investigative phase, but it is – by Article 36 – reiterated in the judicial one. According to this provision, the Permanent Chamber can, ‘if there are suﬃciently justi ed grounds to do so’, decide to assign the case for prosecution in a diﬀerent jurisdiction. Also, in choosing to do so, the Chamber is only called on to consider Article 26 parameters but is not bound by them (11). 3.2. Jurisdiction: a neutral choice? e question arises, then, whether the choice regarding the seat of the judgement should be le in the prosecutors’ hands.

Second, from a procedural perspective, the lack of a common code of procedure to be applied in all investigations means that crucial factors, such as evidence admissibility or procedural guarantees, may vary among jurisdictions (14). is could push towards choosing a jurisdiction where the case would have more probability of success.

Indeed, the choice of the jurisdiction is far from neutral (12). First, from a substantive perspective, the absence of a European Criminal Court means that there will not be a harmonised jurisprudence. In the absence of a Supreme Court to perform a nomophylactic function, the case law may well diverge among diﬀerent jurisdictions.

e substantive diﬀerences both in terms of legal basis and judicial interpretations, combined with the diﬀering procedural laws, may thus foster a phenomenon of forum shopping (15). 3.3.

e choice of the jurisdiction is far from neutral

e appealability of the decision

All of this is even more worrying considering that the EPPO Regulation does not expressly provide for the decision to be motivated or appealable, potentially expanding the margin of appreciation and

11. Luchtman, ‘Forum Choice and Judicial Review Under the EPPO’s Legislative Framework’, cit., 158.0 12. Mitsilegas, ‘European prosecution between cooperation and integration: e European PublicProsecutor’s Office and the rule of law’, Maastricht Journal of European and comparative law, 28/2, 2020, 257. 13. Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the ght against fraud to the Union's nancial interests by means of criminal law, OJ L 198, 28.7.2017, p. 29–41 (the PIF Directive). 14. Giuffrida, ‘ e European Public Prosecutor’s Office’, cit., 40. 15. Panzavolta, ‘Choosing the National Forum in Proceedings Conducted by the EPPO’, cit., 66; Mitsilegas, ‘European prosecution between cooperation and integration: e European Public Prosecutor’s Office and the rule of law’, cit., 257.

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secutor to pursue the case in a diﬀerent State (20). is could generate negative con icts of jurisdictions where various national courts could reciprocally deny their jurisdiction without any supreme court being able to reconcile these con icts.

creating an autonomous power to make a judicial decision, possibly critical for the outcome of the prosecution. Also, the lack of appealability seems to breach the right to a fair trial as enshrined by Article 6 of the European Convention on Human Rights (ECHR) (16). Namely, not being able to appeal the decision concerning the choice of the forum deprives the defendant of the possibility of having a crucial decision regarding its trial judged by an impartial and independent tribunal. is may well constitute a breach of the ECHR, in light of the Strasbourg Court’s case law (17).

3.4.

e lack of defendant’s participation

What is also problematic is the lack of the defendant’s participation rights in the process leading to the decision regarding the choice of the jurisdiction (21). Given the non-neutral nature of the choice, the lack of any possibility for the defendant to participate in the decision, orally or in writing, raises questions regarding the compliance of this provision with the right to be heard enshrined in most national Constitutions and in Article 6 ECHR.

Indeed, as speci ed by the European Court of Human Rights (ECtHR), the right to a fair trial enshrined by ‘Article 6 (…) may be relevant before a case is sent for trial, if and so far as, the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions’ (18). Given the impact of such choice on the unfolding of the trial and its outcome, not having the possibility of having the case heard by a tribunal seems especially troubling.

Even if it is true that unilateral, albeit appealable, acts of the prosecutor certainly do exist in criminal procedures, the lack of a previous adversarial procedure is always justi ed by the need to avoid that the knowledge of the act by the defendant thwarts its execution.

An option could be to consider the decision of the Permanent Chamber to be appealable in front of national courts (19), under Article 42(1) of the EPPO Regulation. However, it is hard to see how a national court could judge another State’s jurisdiction. While courts may rule on their lack of jurisdiction, it is hardly conceivable that they could mandate the pro-

is need is certainly not present when it comes to jurisdiction allocation. It is therefore diﬃcult to understand why the defendant is not granted participation in the process leading to such decision, also considering the clear impact the la er has on his position and ability to defend himself.

16. On the applicability of the ECHR to EPPO see Callewaert, ‘No Case to Answer for the European Public Prosecutor Under the European Convention on Human Rights? Considerations on Convention Liability for Actions of the European Public Prosecutor’s Oﬃce’, Europe of Rights & Liberties/Europe des Droits & Libertés, 1, 2021. 17. ECtHR, Astradsson Iceland (2020); ECtHR, Richert Poland (2011); ECtHR, Coeme Belgium (2000); ECtHR, Belilos Switzerland (1988). 18. ECtHR, Magee UK (2000); ECtHR, Ocalan Turkey (2005); ECtHR, Ibrahim UK (2016). 19. Luchtman, ‘Forum Choice and Judicial Review Under the EPPO’s Legislative Framework’, cit., 159. 20. Panzavolta, ‘Choosing the National Forum in Proceedings Conducted by the EPPO’, cit., 80. 21. Panzavolta, ‘Choosing the National Forum in Proceedings Conducted by the EPPO’, cit., 82.

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3.5.

e right to a natural judge

A nal problem related to the rule enshrined by Article 26 of the EPPO Regulation is its possible con ict with constitutional values regarding competence allocation. Namely, most Member States’ Constitutions prescribe the right of the defendant to be tried by a judge whose competence is predetermined by law. is need for a legal provision laying down clear rules of competence is reiterated by the ECHR. e ECtHR has aﬃrmed that ‘Article 6 § 1, comprises the legislation on the establishment and competence of judicial organs (…) if a tribunal does not have jurisdiction to try a defendant in accordance with the provisions applicable under domestic law, it is not “established by law” within the meaning of Article 6 § 1’ (22). While this principle does not naturally apply to jurisdiction in the case of the EPPO, given its transnational scope, it is reasonable to expect that the same principles applied nationally to competence would apply to jurisdiction identi cation (23). In the EPPO’s investigations, jurisdiction allocation may well be considered comparable to competence identi cation in national prosecution systems and, therefore, covered by the same constitutional safeguards. Given this constitutional framework, the EPPO Regulation, by entrusting the ultimate choice regarding jurisdiction to the prosecutors, seems to be in breach of principles enshrined in most national constitutions as well as in the ECHR. By simply reading the Regulation, the defendant cannot predetermine the State where he or she will be prosecuted. is uncertainty and partial arbitrariness does not only violate the principle of the natural judge, but it also puts an unreasonable burden on the defendant. e uncertainty regarding the jurisdiction where he or she will be tried means that, in the investigation phase, the defendant may be unable to correctly prepare his or her defence given the impossibility of clearly understanding the relevant substantive and procedural framework.

22. ECtHR, Jorgic Germany (2007); ECtHR, Richert Poland (2011). 23. Panzavolta, ‘Choosing the National Forum in Proceedings Conducted by the EPPO’, cit., 66.

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to the accusation. Given the non-unitary legal base under which the EPPO operates, determining the competent jurisdiction may substantially aﬀect the trial's unfolding and outcome. Moreover, the lack of clear rules that permit the jurisdiction to be predetermined where the trial will be installed constitutes a breach of the principle of the natural judge and puts an undue burden on the defendant.

4. Conclusion Jurisdiction allocation has become a topic of crucial relevance. e development of information technologies coupled with all-encompassing globalisation has dismantled the eﬀectiveness of the long-held principle of territoriality.

States have been struggling to nd a common soluese shaky rules for jurisdiction allocation are far tion to this problem caught between the need to profrom being a purely theoretical problem as they tect their sovereignty and guaranteeing effective procould imperil the legitimacy of EPPO’s prosecusecution. is new state of affairs has, however, not tions and ultimately affect the led to any meaningful advanfunctioning of the Office. If ces in the systematic structure national or supranational of jurisdiction, leading up to a courts were to recognise the chaotic framework. European illegitimacy of the EPPO’s ruStates have not been able to do les, the fairness of all transnabe er than their global partDetermining the competent tional investigations would be ners. e only policy that has tried to address con icts of ju- jurisdiction may substantially called into question. risdiction simply provides for affect the trial's unfolding It is, therefore, of the utmost a bilateral consensual apimportance to review the ruand outcome proach. les on jurisdiction allocation in EPPO’s investigation to Against this background, the adapt them to the overarching EPPO will expose this jurisConstitutional framework. dictional hurdle. Namely, the To achieve this goal three funOffice’s competence and its damental amendments territorial scope will imply that should be introduced. Firstly, the unilateral and dismost of its cases will have a transnational feature. cretionary power of the College to choose the comNotwithstanding the crucial nature of this topic, the petent jurisdiction should be eliminated. Secondly, EPPO Regulation does not provide for a satisfacthe defendant should be granted extended powers tory solution. Indeed, the la er, a er establishing of participation in the choice of forum. And, thirdly, vague criteria, entrusts the prosecutors with the ultithe decision on jurisdiction allocation should be apmate power to choose the competent jurisdiction. pealable to the ECJ so to avoid positive or negative con icts of jurisdiction among the Member States. is provision constitutes a breach of the principle of equality of arms as it affords a concrete advantage

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ect on the rationale behind criminal punishment so to adapt it to the new architecture of the world. Starting from the concept of breach of the Nation’s peace a principle can be identi ed that gives precedence to the State which internal peace has been breached by the action of the defendant. e EPPO Regulation underlines that this decision cannot be postponed anymore and needs to be addressed by the European policymaker as soon as possible.

Finally, these amendments could be an occasion to start a serious re ection on how to overcome the principle of territoriality. Eminently, the EPPO Regulation emphasizes an underlying problem: the lack of a common criterion to solve positive conicts of jurisdiction within the EU. If the concept of territory does not describe any more human action then a new principle needs to be devised to strike a balance between each Nation’s interest to punish. To reach a satisfactory solution it is necessary to re-

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News Highlights Week 20 to 24 Sept 2021

Global Methane Pledge to reduce methane emissions by 30% reached between EU and U.S.

Court of Justice to rule again on the review powers of the national courts concerning consumer loan agreements

Monday 20 September

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In the context of the ght against global warming, the EU and the United States agreed on an initiative to reduce methane emissions -the Global Methane Pledge- and urged countries at the U.S.-led Major Economies Forum on Energy and Climate (MEF) to join the Pledge commi ing to a collective goal of reducing global methane emissions by at least 30 percent by 2030.

e Court of Justice has been requested by a court in Spain to give a preliminary ruling on various issues related to the consumer credit agreements in case Casilda v Banco Cetelem SA (C-302/21), concerning especially the review powers of national courts in the assessment of the unfair nature of the terms.

Commission awards 18 take-oﬀ and landing slots at Paris-Orly airport to Vueling Monday 20 September

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Human rights and restrictive measures adopted under a state of emergency: ECtHR’s judgments Monday 20 September

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e Commission gave priority to Vueling’s proposal for the slots submi ed in the framework of commitments made by France to remedy possible competition concerns of approved Air France’s recapitalisation.

e European Court of Human Rights issued two judgments concerning certain restrictions of civil liberties in Armenia under the state of emergency declared in the city of Yerevan on 1 March 2008, in the context of nationwide rallies alleging irregularities in the presidential election of February that year.

ECtHR rules that Russia was responsible for the assassination of Aleksandr Litvinenko in the UK

Poland imposed a penalty of 500,000 euros per day for failing to comply with Court of Justice’s Order to cease activities at Turów mine

Monday 20 September

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e European Court of Human Rights ruled in Carter v. Russia that the Russian Government had breached both the procedural and the substantive limb of the right to life under Article 2 of the European Convention on Human Rights (ECHR) in connection with the poisoning and death in the United Kingdom of the applicant’s husband, Aleksandr Litvinenko.

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e Vice-President of the Court of Justice issued an Order in case Czech Republic v Poland (C-121/21 R), imposing a daily penalty payment of 500,000 euros on Poland for failing to cease lignite extraction activities at Turów mine, located close to the borders of the Czech Republic and Germany, and which triggered various negative environmental consequences on the communities living closely, such as causing water shortages.

Nº72 · SEPTEMBER 25, 2021

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Commission issues Statement of Objections for gun-jumping in Illumina’s acquisition of G IL

Court of Justice to rule whether conducts of UEFA and FIFA are in breach of competition rules

Tuesday 21 September

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e Commission referred a Statement of Objections for the alleged breach of a standstill obligation imposed on Illumina and G IL for implementing the acquisition while the indepth investigation of the Commission was still ongoing and the clearance for the merger had not been received.

e Court of Justice will be ruling on the request for a preliminary ruling lodged by a Spanish court regarding the quali cation of restrictive practices under EU competition rules in the international football competitions in case European Super League Company, S.L. v Union of UEFA and FIFA (C333/21).

European Court of Auditors: EU needs to do more towards sustainable nance

General Court annuls Commission’s Decisions nding a preferential energy supply tariﬀ xed by an arbitral award was not State aid

Wednesday 22 September

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In its latest Special Report, the European Court of Auditors found that the EU is not doing enough to invest into sustainable activities as part of the transition to a net-zero emission economy.

General Court: Selection Board must provide the weighting coeﬃcients for the scores received during the selection procedure to the rejected candidates Wednesday 22 September

Wednesday 22 September

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In DEI v Commission (joined cases T-639/14 RENV, T352/15, T-740/17), the General Court annulled the decisions by which the Commission had found that an arbitration award xing an allegedly preferential electricity tariﬀ for a Greek aluminum producer, Mytilinaios, did not grant an advantage and did not constitute State aid.

Commission adopts a comprehensive ‘review package’ of Solvency II rules Wednesday 22 September

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e European Commission reviewed EU insurance rules with the goal to help companies in the insurance sector to scale up their long-term investment so they can withstand be er future crises, such as the one provoked by COVID-19 pandemic.

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e General Court issued a judgment in JR v Commission (T435/20), annulling the selection board’s decision for an internal competition not to include the applicant’s name on the reserve list for the recruitment of the position because it was not suﬃciently reasoned.

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EU and U.S. launch COVID-19 Manufacturing and Supply Chain Taskforce ursday 23 September

AG Rantos: motor vehicles equipped with so ware limiting the reduction of NOx emissions are contrary to EU law

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ursday 23 September

e European Commission and the United States issued a Joint Statement nalizing the launch for the joint COVID-19 Manufacturing and Supply Chain Taskforce as part of their eﬀorts to end the global pandemic.

Advocate General Rantos delivered his Opinion in the Grand Chamber cases GSMB Invest (C-128/20), Volkswagen (C134/20) and Porsche Inter Auto and Volkswagen (C-145/20), concerning whether EU law prevents the sale of motor vehicles equipped with so ware which limits the reduction of nitrogen oxide (NOx) emissions.

AG Bobek: requirement of proportionality of penalties laid down in EU Directives has direct eﬀect, calling the Court to overrule its previous case-law ursday 23 September

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Advocate General Bobek issued an Opinion in NE v Bezirkshauptmannscha Hartberg-Fürstenfeld (C-205/20), nding that the requirements of proportionality of penalties laid down in EU Directives are directly eﬀective and national courts must disapply any national provision that would result in a breach of EU law, calling on the Grand Chamber of the Court of Justice to expressly and openly overrule its previous case-law in Link Logistik (C-384/17).

Commision’s Infringement Package September 2020 ursday 23 September

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e European Commission made public its package of infringement decisions for the month of September. e Commission has issued various le ers of formal notice, reasoned opinions, and commenced two legal proceedings before the Court of Justice in 11 by policy areas.

Commission proposes one common charger for portable electronic devices ursday 23 September

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e Commission is revising the Radio Equipment Directive 2014/53 in order to establish one common charging solution for all relevant electronic devices in its eﬀorts to stop unnecessary e-waste and improve consumers’ convenience.

Nº72 · SEPTEMBER 25, 2021

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Insights, Analyses & Op-Eds Our Rule of Law Festival − Day 1 and Day 2 by Elena Kukovica

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Two Analyses covering the development of the Festival ‘Our Rule of Law’ organised at the University of Groningen, the Netherlands, seeking to bring a ention to the ongoing crisis of one of the EU law’s most integral principles − the rule of law − in Poland.

Does the concept of ‘sale of goods’ in the Commercial Agents Directive cover the supply of a perpetual licence to computer so ware? by Johanna Jacobsson

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Analysis of the Court of Justice’s judgment in e So ware Incubator (C-410/19), concerning a preliminary ruling on the concept of ‘goods’ in the context of the Commercial Agents Directive (Directive 86/653) and more speci cally whether that concept may cover the supply of a licence to computer so ware.

On procedural pluralism, eﬀective remedies and dogs that do not bark (yet): e opinion of Advocate General Hogan in Randstad by Giulia Gentile

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Op-Ed on Advocate General Hogan’s Opinion in Randstad Italia (C-497/20), concerning a preliminary ruling submi ed by the Italian Court of Cassation, which had doubts about the compatibility with EU law of the interpretation of several national norms given by the Italian Constitu-

e Kosmtroy judgment, the Union interest, and the autonomy of the EU Legal Order by Andrés Delgado Casteleiro

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Op-Ed on the Komstroy judgment (C-741/19), as part of the EU Law Live Symposium on this ruling. Andrés Delgado focuses on how to read the Komstroy judgment against the Court of Justice’s case law on mixed agreements, and more speci cally, on EU law obligations to comply with those agreements

What would a reasonable journalist have done? Balancing insider dealing law and media freedom in Case C-302/20

Komstroy: constitutional, procedural and substantive implications

by Emilia Korkea-aho

by Paschalis Paschalidis

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Analysis of Advocate General’s Koko Opinion in A. – Other party: Autorité des marchés nanciers (C-302/20), concerning whether the nancial journalist Mr. A had been unfairly penalised for having disclosed inside information, read against the heightened interest in media freedom and journalistic activities in the EU.

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Fi h Op-Ed on the EU Law Live Symposium on the Komstroy judgment (C-741/19), focusing on the constitutional, procedural and substantive issues posed by this ruling, which concern inter alia the powers of the Court of Justice in the context of Article 267 TFEU.