Weekend Edition Nº77 by eulawlive

Nº77

OCTOBER 23

2021

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LAURA ATZENI

TOWARDS A PERMANENT EUROPEAN UNEMPLOYMENT (RE)INSURANCE SCHEME CRITICAL ANALYSIS OF THE SURE REGULATION AND PROSPECTIVE REFLECTIONS

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Towards a Permanent European Unemployment (Re)Insurance Scheme − Critical analysis of the SURE Regulation and prospective reﬂections Laura Atzeni

pable of dealing with asymmetric shocks, as well as for strengthening solidarity among Member States and the social dimension of the EU.

I. Introduction (1)

e ght against unemployment, as reaﬃrmed in the European Pillar of Social Rights, is one of the EU’s social and economic policies main objectives. Rates in employment and, conversely, A project to create a permanent unemployment are key indicators in understanding the social European Unemployment issues and well-being of a Insurance Scheme (EUS), or a country. erefore, EU action in these areas is necessary if reinsurance system for national cyclical internal problems or external shocks undermine the na- unemployment bene t schemes, tional social protection systems has been discussed for decades of the Member States. A project to create a permanent European Unemployment Insurance Scheme (EUS), or a reinsurance system for national unemployment bene t schemes, has been discussed for decades. is would constitute a means for the establishment of a common scal capacity ca-

e health crisis caused by the COVID-19 pandemic has re-launched the debate for the adoption of such an instrument. To counteract the economic and social eﬀects of the crisis, a legal framework was put in place temporarily allowing the EU to provide nancial assistance to Member States, in the form of Regulation 2020/672 (the ‘SURE Regulation’) (2).

is contribution aims to understand the potential transferability of the SURE Regulation to a permanent EUS, thus analysing the constitutional issues underlying the possibility of its se ing up.

i. LLM in European Legal Studies at the College of Europe in Bruges. She previously worked as an assistant lawyer and international consultant for the European Social Charter department of the Council of Europe 1. is contributionis a shortened version of a more extended work wri en as a esis paper for the LLM in European Legal Studies at the College of Europe in Bruges: Laura Atzeni, ‘Enjeuxconstitutionnels pour la mise en place d’un régime européen permanent de (ré)assurance chomage. Analyse critique du Règlement SURE et ré exionsprospectives’, Collège d’Europe, 2021. e esis was awarded the Jacques Delors Institute Prize for the best esis on the European Project and is going to be published, partially revised, in the Jacques Delors Institute Policy Papers. 2. Council Regulation (EU) 2020/672 of 19 May 2020 on the establishment of a European instrument for temporary support to mitigate unemployment risks in an emergency (SURE) following the COVID-19 outbreak, OJ L 159, 20.5.2020, p. 1.

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is new nancial instrument is based on Articles 122(1) and (2) TFEU. In particular, Article 122(1) TFEU gives the power to the EU to adopt, in a spirit of solidarity between Member States, measures appropriate to the economic situation in the event of a Member State experiencing ‘severe difficulties’. Under Article 122(2) TFEU, a Member State may be granted nancial assistance from the Union in case where it is in difficulty or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control. Both provisions require an emergency situation, making it impossible for this provision to serve as a legal basis for instruments designed to address permanent challenges (3).

II. e outbreak the COVID-19 pandemic and the adoption of the SURE Regulation In March 2020, following the outbreak of the COVID-19 pandemic and the shutdown of most economic activities, Member States had to activate public policy programmes compensating workers for hours not worked in cases of suspension or reduction of their working hours. To support Member States’ actions, the Commission proposed the SURE Regulation, which was adopted by the Council on 19 May 2020. e Regulation provides that any Member State suﬀering from a sudden sharp increase in public expenditure − due to measures linked to short-time working arrangements − may apply for EU nancial assistance, in the form of loans, up to a maximum amount of 100 billion euros for all Member States. Financial assistance is then made available to that Member State through a Council implementing decision and a loan agreement is concluded between the Member State and the Commission. To nance this instrument, the EU borrows on the capital markets, or from nancial institutions. In exchange, Member States are invited to contribute to the instrument, counterguaranteeing the risk borne by the Union. By being limited to managing the impact of the COVID-19 crisis, the SURE instrument is of a temporary nature. Member States may apply for nancial assistance only until 31 December 2022, a deadline which could be extended for six months at a time if the economic disruption persists.

In the case at issue, Article 122(1) TFEU constitutes the legal basis for the guarantee scheme that supports the SURE instrument. e outbreak of a pandemic is a sudden and exceptional event with massive disruptive impacts on the economies and labour markets of the Member States. ese unprecedented circumstances call for a collective response and, therefore, a guarantee scheme, based on voluntary contributions from Member States, is to be considered an appropriate measure for the current economic situation, which the Council members decided upon in a spirit of inter-state solidarity (4). On the other hand, the organisation and management of the loans is based on Article 122(2) TFEU, and meets all the requirements of the la er. e main criterion for the use of this provision is the lack of control by the Member State over the exceptional circumstances which cause or could cause diﬃcul-

3. Leo Flynn, ‘Article 122 TFEU’, in Manuel Kellerbauer, Marcus Klamert, and Jonathan Tomkin(eds.), e EU Treaties and the Charter of Fundamental Rights. A commentary, Oxford University Press, 2019, p.1283. 4. Karl Croonenborghs, ‘ e European instrument for temporary support to mitigate unemployment risks in an emergency (SURE) - an innovative (social ) approach to EU nancial assistance’, EULaw Live Weekend Edition no. 19, 2020, p.6.

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ties to that State (5). e current crisis is clearly beyond the control of the Member States and is of an extremely alarming and exceptional nature, thus justifying recourse to Article 122(2) TFEU.

e scope of the SURE instrument, as well as its temporary nature, shows certain limitations, which prevent it from being fully trans-

III. Limits to the transferability of the SURE instrument to a permanent European Unemployment (Re)Insurance Scheme

ferable to a permanent EUS type of instrument. Given the emphasis on shortterm employment and dismissal avoidance schemes, this Regulation introduces an employment rather than an unemployment insurance scheme (8). It is, in eﬀect, a mechanism to save jobs and prevent unemployment, rather than to support those who are already unemployed (9).

e adoption of the SURE Regulation is a key step in the implementation of an instrument to support Member States’ social protection systems. Since its activation on 22 September 2020, it has signi cantly helped nancing national short-time working schemes, helping workers maintain their income and ensuring that companies could retain their staﬀ (6).

e scope of the SURE instrument, as well as its temporary nature, shows certain limitations, which prevent it from being fully transferable to a permanent EUS. Firstly, the SURE instrument does not cover the unemployed as such, as it excludes redundant persons, those who are not eligible for short-time work, as well as workers in precarious situations. By contrast, a permanent EUS should guarantee adequate access to social insurance for all types of workers in the Union (10). Secondly, by being based on a system of loans and not grants, this instrument is not considered sustainable in the long term, notably for countries already heavily indebted such as Italy

In this context, there is a strong consensus on the will to transform the SURE instrument into a permanent EUS (7). Some Member States and trade unions have explicitly asked for an extension or its replacement by a permanent instrument. e Commission itself, when proposing the SURE Regulation, made it clear that its adoption did not preclude the future establishment of a permanent EUS. However, while the structure of the SURE instrument recalls that of a EUS, it is not exactly the same

5. Leo Flynn, ‘Article 122 TFEU’, cit., p.1283. 6. Report from the Commission to the European Parliament, the Council, the Economic and Financial Commi ee and the Employment Commi ee − Report on the European instrument for Temporary Support to mitigate Unemployment Risks in an Emergency (SURE) following the COVID-19 outbreak pursuant to Article 14 of Council Regulation (EU) 2020/672 ‘SURE: Taking Stock A er Six Months’, 22 March 2021, COM(2021)148 nal, p. 4. 7. European Parliament Resolution of 17 April 2020 on EU coordinated action to combat the COVID-19 pandemic and its consequences (2020/2616(RSP)). On the EC's commitment to propose a ‘European system of reinsurance for unemployment bene ts’ vidUrsula von der Leyen, ‘A Union that strives for more. My agenda for Europe: Political Guidelines for the Next European Commission 2019-2024’, 2019, p. 10. 8. Frank Vandenbroucke, László Andor, Roel Beetsma, et al, ‘ e European Commission’s SURE initiative and euro area unemployment re-insurance’, VoxEU.org, 6 April 2020, p.61. 9. László Andor, ‘SURE - EU Capacity for Stabilising Employment and Incomes in the Pandemic’, Intereconomics 55(3) 2020, p.140. 10. So a Fernandes and Frank Vandenbroucke, ‘SURE:A welcome lynchpin for a European unemployment re-insurance’, Jacques Delors Institute, 10 April 2020, p.8.

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e establishment of a permanent system within the framework of the Union’s economic policy would risk subjugating its social to its economic aspects, privileging economic concerns over social ones

permanent EUS to be based on it. From the point of view of the European constitutional order, the foundation of the SURE instrument on Article 122 TFEU brings it back to an initiative which, although having unavoidable social eﬀects, belongs to the eld of economic policy. Although Article 122 refers to the principle of solidarity between the Member States, the anchoring of the SURE instrument on a basis designed to support economic policy, rather than on the Treaties’ provisions speci cally devoted to social protection or cohesion, links it to an emergency instrument aimed primarily at supporting the budgetary stability of the Member States. In the same sense, the establishment of a permanent system within the framework of the Union’s economic policy would risk subjugating its social to its economic aspects, privileging economic concerns over social ones.

or Spain (11). Lastly, the SURE instrument is activated on the basis of Member States’ requests and subject to the adoption of a Council decision. By contrast, an eﬀective EUS (12) requires its structure and existence to be de ned at a time prior to its use, allowing the instrument to be activated automatically in case of need. From a more speci c legal point of view, Article 122(2) TFUE could provide ground for the payment side of a permanent ‘indirectly managed’ EUS. It could provide the legal basis for a system with a permanent structure, but which would only be activated in the event of a speci c severe shock, linked to a ‘serious threat’ leading to ‘severe diﬃculties’ for the Member State concerned (13). However, given its inherent logic of urgency and its place in the economic policy eld, it does not seem desirable for a

11. Ibid. 12. René Repasi, ‘Legal options and limits for the establishment of a European unemployment bene t scheme’, CEPS, 2017, p. 35. 13. Armin Steinbach, ‘Insurance-type Cooperation Mechanisms under EU law’, ADEMU Working Papers Series, April 2018,p.9.

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schemes (17). Mechanisms of the rst type establish a system of reinsurance of national unemployment insurance schemes. ey provide for a transfer to Member States of nancial resources to be used to strengthen national social buﬀers. e mechanism is activated according to a trigger (namely a national unemployment crisis exceeding a certain threshold) and the amount of the bene t is paid by the supranational fund to the budget of the State concerned (18). By contrast, ‘directly managed’ systems provide for the establishment of a direct unemployment bene t system (19). In this case, the mechanism is activated as soon as the risk of unemployment of a single individual arises (namely a worker entering an unemployment scheme) and the amount is paid directly to the person concerned. In this system, the European scheme constitutes an autonomous measure, coexisting in its scope of application with the national system (20).

e question that arises is, therefore, whether more appropriate legal bases for the establishment of a EUS can be found in the Treaties. In order to do so, consideration must be taken of the possible structures of a EUS and its relative diﬀerent objectives.

IV. e possible structures of a perman e n t E u r o p e a n Un e m p l o y m e n t (Re)Insurance Scheme e idea of creating a permanent EUS dates back to the 1970s, when such a system was identi ed as an automatic scal policy stabiliser, the la er being a budgetary device that ‘helps dampen cyclical uctuations at unchanged policies’ (14). An EUS is to be considered as an automatic stabiliser in that it supports the purchasing power of citizens in the event of an economic downturn (15). us, the introduction of a Community system of unemployment bene ts was seen as an eﬀective approach to address the imbalances between the Member States (16).

e two types of structures are generally designed to achieve diﬀerent objectives. In ‘indirectly managed’ systems, the predominant objective is to achieve stabilisation of national budgets in order to mitigate the eﬀects of an economic shock. In ‘directly managed’ systems, the predominant objective is to mitigate the social risk of workers unemployment, providing a form of insurance that operates on an individual basis (21). From a legal point of view, this distinction is particularly signi cant. Following the

Over the years, several proposals for a EUS have been launched, which can be distinguished between numerous articulations, aiming at diﬀerent objectives. Among the variants, a distinction emerges between the two main families of ‘equivalent’ or ‘indirectly managed’ and ‘real’ or ‘directly managed’

14. Robert Strauss, ‘ e history and debate in Europe on a European Unemployment Bene t Scheme’, June 2016, p.2; Philipp Mohl, Gilles Mourre, and Klara Stovicek, ‘Automatic Fiscal Stabilisers in the EU: Size and Eﬀectiveness’, European Commission Economic Brief 045, 2019, p. 2. 15. Frank Vandenbroucke, László Andor, Roel Beetsma, et al, cit., p.58; Miroslav Beblavý and Karolien Lenaerts, ‘Feasibility and Added Value of a European Unemployment Bene ts Scheme’, CEPS, 10 February 2017, p.9. 16. Commission’s Report of the study group ‘Economic and Monetary Union 1980’ (Marjolin Report), 8 March 1975, p. 34. 17. Miroslav Beblavý and Karolien Lenaerts, cit., pp.27-28. 18. René Repasi, cit., p.8. 19. Senato della Repubblica, Camera dei deputati, Audizione del Commissario europeo per il lavoro e i diri i sociali, Nicolas Schmit, sulle tematiche di sua competenza, 25.02.2020, p.17. 20. René Repasi, cit., p. 8. 21. Ibid., p. 9.

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e concept of cohesion indicates ‘the degree to which disparities in social and economic well-being between diﬀerent regions or groups within the EU are politically and socially tolerable’ (23). If economic, social and territorial cohesion is an objective of the Union, this means that the la er seeks, through its actions, to reduce these inequalities. In the case of a EUS, a main part of its rationale is certainly to reduce the existing inequalities between Member States in the eld of (un)employment. By nancing existing national social protection systems, this mechanism would aim at reducing the economic and social disparities resulting In the case of a EUS, depen- from employment crises, ding on the structure and the both within and between Member States.

principle of conferral of competences, any EU action must necessarily be founded on one of the legal bases provided for in the Treaties. e choice of a legal basis is based on objective factors, such as the objective and content of the proposal. In the case of a EUS, depending on the structure and the predominant objective that derives from it, the legal basis identi ed will be likely to be diﬀerent. Diﬀerent provisions have been identi ed according to the predominant objective pursued, among which Article 175(3) TFEU appears to be the most suitable, in so far as the payment component of a permanent EUS is concerned (22).

V. Article 175(3) TFEU as a legal basis for a permanent European Unemployment (Re)Insurance Scheme

predominant objective that

In regard to the structure of the scheme, it was argued in the literature that the use identi ed will be likely to of Article 175(3) TFEU for the establishment of a be diﬀerent ‘directly managed’ scheme Provided it is designed to signi could illegally circumvent cantly strengthen and genuinely the limits set by Article 153 contribute to the economic, soTFEU, both as regards the legislative procedure and cial and territorial cohesion of the EU, as well as to the limits provided for by paragraph 4 of that provieﬀectively reduce disparities between Member Stasion, such as the respect for the fundamental natiotes, the payment component of a EUS could be banal principles of the Member States’ social protecsed on Article 175(3) TFUE. According to the tion systems (24). Given that in ‘directly managed’ la er, speci c action can be taken and new nancial systems the EUS and the national system coexist in support instruments can be established, outside the their respective scope, in situations where the natioexisting Structural Funds grounded on Article nal system would be less generous than the Euro175(1)(2) TFEU, if necessary to achieve the cohepean one it is very likely that political pressure sion objective. would be put on national governments to adapt the

derives from it, the legal basis

22. For further considerations on this point, see Laura Atzeni, ‘Enjeux constitutionnels pour la mise en place d’un régime européen permanent de (ré)assurance chomage. Analyse critique du Règlement SURE et ré exions prospectives’, Collège d’Europe, 2021, and Laura Atzeni, ‘L’heure d’une reassurance chomage europeenne a-t-elle sonné ? Analyse critique du Règlement SURE et ré exions prospectives’, Jacques Delors Institute Policy Papers, forthcoming. 23. Willem Molle, European cohesion policy, Routledge, 2007, p. 5. 24. René Repasi, cit.,pp. 30-31.

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Moreover, the fact that the establishment of a ‘directly managed’ EUS could have indirect eﬀects on national unemployment insurance schemes does not imply an unlawful abuse of the limits imposed by Article 153(4)(a) TFEU. Following to the Court of Justice’s case law (UK v Council, C-84/94) (29), even if it cannot be excluded that the establishment of such a scheme may have an indirect impact on the national systems, this is clearly not its essential objective. us, the Commission’s proposal for a Directive on minimum wages justi es the choice of the legal basis of Article 153 TFEU, notwithstanding the prohibition in its paragraph 5 of legislating on pay, considering that the proposed Directive does not contain measures having a direct eﬀect on the level of pay (30).

level of the former, leading potentially to harmonisation of national systems. is consequence is prohibited by Article 153 TFEU, which only authorises the adoption of minimum requirements while respecting the rules existing in the Member States, as well as the fundamental principles of their social security systems and their nancial equilibrium. Consequently, from this perspective, Article 175(3) TFEU could not serve as a legal basis for the establishment of a ‘directly managed’ EUS. Nevertheless, the fact that a measure grounded on a legal basis may have an impact on another policy area covered by another legal basis does not mean that the use of the rst legal basis constitutes a ‘circumvention of the limitations’ associated with the second one (25). In Gauweiler (C-62/14) (26) and Pringle (C-370/12) (27), the Court of Justice accepted that monetary policy measures should not be considered as falling within the scope of economic policy simply because they might have an indirect eﬀect which can also be found in the context of economic policy. is reasoning was considered applicable in the study of Article 175(3) TFEU as legal basis for a legislative measure on minimum wages (28). Following the same logic, the use of Article 175(3) TFEU instead of Article 153 TFEU for the establishment of a EUS could be considered legitimate, provided that it can be legally argued that the main objectives of the action are to strengthen social and territorial cohesion.

As for ‘indirectly managed’ schemes, it has been noted in the literature that they could not in principle be based on Article 175(3) TFEU. While the main

e fact that the establishment of a ‘directly managed’ EUS could have indirect eﬀects on national unemployment insurance schemes does not imply an unlawful abuse of the limits imposed by Article 153(4)(a) TFEU

25 Ana Aranguiz and Sacha Garben, ‘Confronting the Competence Conundrum of an EU Directive on Minimum Wages: In Search of a Legal Basis’, College of Europe Policy Brief Series, 2019, 1-5, at p. 2; Leo Flynn, ‘Greater convergence, more resilience? - Cohesion policy and the deepening of the Economic and Monetary Union’, in Diane Fromage and Bruno de Wi e (eds.), Recent Evolutions in the Economic and Monetary Union and the European Banking Union: A Re ection, Faculty of Law Working Paper Series, Maastricht University, 2019, 48-49. 26. Judgment of the Court of Justice (Grand Chamber) of 16 June 2015, Peter Gauweiler and Others v Deutscher Bundestag (C-62/14), ECLI:EU:C:2015:400. 27. Judgment of the Court of Justice (Full Court) of 27 November 2012, omas Pringle v Government of Ireland and Others (C-370/12), ECLI:EU:C:2012:756. 28. Ane Aranguiz and SachaGarben, cit., p. 2. 29. Judgment of the Court of Justice of 12 November 1996, United Kingdom of Great Britain and Northern Ireland v Council of the EU (C-84/94), ECLI:EU:C:1996:431. 30. Commission’s Proposal for a Directive of the European Parliament and of the Council on adequate minimum wages in the European Union, 28 October 2020, COM(2020) 682 nal.

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ese mechanisms are very similar in their logic and operation to an ‘indirectly managed’ mechanism for reinsuring national unemployment systems. While the former are geared towards supporting public investment expenditure, an indirectly managed European unemployment reinsurance mechanism would aim to support national social expenditure on unemployment. An unemployment reinsurance mechanism could similarly be based on Article 175(3) TFEU, with the speci c objective of nancing unemployment expenditure instead of public investment, which a fortiori contributes to social cohesion.

objective of an action based on this provision must be social cohesion, ‘indirectly managed’ schemes aim to stabilise national budgets in the event of shocks (31). However, even in these cases, Article 175(3) TFEU could be relied upon, as far as the aspects more related to the objectives of economic and social cohesion, as well as the creation of a fund to achieve it, are concerned. Following this logic, the Commission had launched in 2018 a legislative proposal on the creation of a European investment stabilisation mechanism, basing it on Article 175(3) TFEU (32). e proposal aimed at establishing a mechanism to assist euro area Member States facing a large-scale asymmetric shock by supporting their public investment. In the same vein, very recently, this legal basis was used for the Regulation establishing the Recovery and Resilience Facility (33). is instrument aims to provide direct nancial support to Member States’ public investment and its adoption on the basis of Article 175(3) TFEU was justi ed by its objective to contribute to the strengthening of cohesion through measures enabling the Member States to recover more rapidly and sustainably from COVID-19 (34).

Finally, the legal basis of Article 175(3) TFEU allows for the adoption of a legal act in the form of a Regulation, as such directly applicable in its entirety in the Member States. Also, the use of the ordinary legislative procedure provided for by such provisions allows the quali ed majority voting and includes the European Parliament in the process of adopting the act, thus strengthening its democratic legitimacy (35).

31. René Repasi, cit., p. 28. 32. Commission’s Proposal for a Regulation of the European Parliament and of the Council on the establishment of a European Investment Stabilisation Function, 31 May 2018, COM(2018)387 nal. 33. Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility, OJ L 57, 18.2.2021, p. 17. 34. Paul Dermine, ‘ e EU’s Response to the COVID-19 Crisis and the Trajectory of Fiscal Integration in Europe: Between Continuity and Rupture’, LIEI 47(4), 2020,345-346. 35. René Repasi, ‘A Dwarf in Size, But a Giant in Shi ing a Paradigm - e European Instrument for Temporary Support to Mitigate Unemployment Risks (SURE)’, EU Law Live Weekend Edition no. 19, 2020, p. 13.

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VI. Conclusions complement and support the national system on a permanent basis and it would not only nance partial unemployment schemes, but national unemployment insurance systems as such. Speci cally with regard to its payments component, such a system could be legally based on Article 175(3) TFEU. By doing so, the EUS would be brought back outside of economic policy, thus reversing the consideration of social and economic aspects within the European construction, while reinforcing the la er’s democratic legitimacy.

In the light of the above observations, considering its content, the SURE instrument as such is intended to be a temporary measure that is diﬃcult to transfer beyond its current scope. However, it does constitute a steppingstone for the adoption of a EUS, which can be envisaged on the basis of the existing Treaties. e most feasible solution seems to propose a permanent European Unemployment Reinsurance Scheme, ‘indirectly managed’, which, just like the SURE instrument, would nance and support national social protection systems (36). Unlike the SURE instrument, however, it would

e most feasible solution seems to propose a permanent European Unemployment Reinsurance Scheme, ‘indirectly managed’, which, just like the SURE instrument, would nance and support national social protection systems

36. László Andor, ‘Social dimension of the Economic and Monetary Union: what lessons to draw from the European elections?’, Speech of 13 June 2014.

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News Highlights Week 25 to 29 Oct 2021

Formation of Chambers of General Court published Monday 25 October

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Action for annulment against the Commission Decision approving German scheme to compensate companies for COVID-19 damages

Oﬃcial publication was made of the General Court’s Formation of Chambers and assignment of Judges to Chambers, following the renewal period of October 2021.

Monday 25 October

Commission conditionally approves acquisition of IHS Markit by S&P Global

Position for Fundamental Rights Monitor available at Frontex

Monday 25 October

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An action for annulment against the Commission Decision in case SA.62784 – Art. 107 2b Federal Umbrella Scheme, which approved the German COVID-19 remedy scheme, was published in the Oﬃcial Journal.

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e European Commission approved the proposed acquisition of IHS Markit by S&P Global subject to conditions, namely; the divestment of businesses in the areas of commodity price assessments and nancial data

e European Border and Coast Guard Agency (Frontex) is seeking a full-time Fundamental Rights Monitor at its Fundamental Rights Oﬃce in Warsaw, Poland.

Two upcoming rule of law webinars by Helsinki Rule of Law Forum

Commission investigates pharmaceutical company active in animal health in Belgium

Monday 25 October

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e Helsinki Rule of Law Forum is organizing two webinars on the rule of law in the EU, in collaboration with EU Law Live, on 29 October 2021 and 28 January 2022.

Monday 25 October

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e Commission conducted unannounced inspections at the premises of a pharmaceutical company active in animal health in Belgium on suspicion that the company may have abused its dominant position.

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ECtHR clari es scope of positive obligations of national authorities regarding exercise of voting rights by disabled people

ECtHR: automatic prioritisation of paternal surname in the event of disagreement between parents is discriminatory

Tuesday 26 October

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e European Court of Human Rights delivered its judgment in Toplak and Mrak v. Slovenia, assessing whether the lack of adequate measures to allow persons suﬀering from muscular dystrophy to vote in elections and in a national referendum is contrary to the European Convention on Human Rights.

Court of Justice: arrested person has the right to be heard before Executing EAW Authority gives supplementary consent Tuesday 26 October

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e Court of Justice ruled in Openbaar Ministerie (joined cases C-428/21 PPU and C-429/21 PPU) that an arrested person pursuant to the European Arrest Warrant Framework Decision has the right to be heard in the issuing Member State before the executing judicial authority gives its supplementary consent.

ECtHR: disciplinary proceedings and dismissal of former judge Ruslan Donev in Bulgaria were in line with right to a fair trial Tuesday 26 October

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e European Court of Human Rights unanimously found in Donev v. Bulgaria that the disciplinary proceedings carried out against former judge Ruslan Donev and his dismissal from his duties as a judge and as a President of a court did not breach the right to a fair trial.

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e European Court of Human Rights held in Leon Madrid v. Spain that Spanish rules providing that children would bear the father’s surname followed by that of the mother, in the event of disagreement between the parents, are contrary to the prohibition of discrimination in conjunction with the right to respect for private and family life.

Member States cannot conclude separate arbitration agreements to avoid Achmea, Court of Justice rules Tuesday 26 October

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e Court of Justice held in PL Holdings v Poland (C-109/20) that Member States cannot conclude separate, individual arbitration agreements with identical content to an arbitration clause in a bilateral investment treaty between Member States that is invalid pursuant to its Achmea case law.

Request for a preliminary ruling on exclusion powers under Public Procurement Directive Wednesday 27 October

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Oﬃcial publication was made of a request for a preliminary ruling in Landkreis A.-F. v J. Sch. Omnibusunternehmen and K. Reisen GmbH (C-416/21), originating from the appeal against the exclusion of two related tenderers from a public procurement procedure for breach of the requirement of condentiality and distortion of competition.

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State of the Energy Union Report for 2021: Renewables EU’s main source of electricity Wednesday 27 October

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e Commission adopted its State of the Energy Union Report for 2021, taking stock of the progress made in the implementation of the European energy and climate policies.

ECtHR rules that life imprisonment with possibility of parole a er 40 years breaches human rights ursday 28 October

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e European Court of Human Rights ruled in Bancsók and László Magyar v. Hungary (no. 2) that life imprisonment with a possibility of release on parole a er 40 years amounts in practice to a whole life sentence and thus breaches the prohibition of inhuman and degrading punishment.

Court of Justice rules on rights of a pensioner to be reimbursed for the costs of cross-border healthcare ursday 28 October

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e Court of Justice ruled in CAK (C-636/19) that a person can be reimbursed by the State responsible for the pension for the costs of cross-border healthcare received in a third Member State without being aﬃliated to the compulsory health insurance scheme in the State of the pension.

Commission adopts Banking Package 2021 Wednesday 27 October

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As a nal step in the implementation of the Basel III agreement, the Commission adopted a review of EU banking rules that aims to ensure that EU banks become more resilient to potential future economic shocks.

AG Rantos Opinion clari es the temporal scope of the Competition Damages Directive in the context of the Spanish truck cartel case ursday 28 October

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Advocate General Rantos concluded in Volvo and DAF Trucks (C-267/20) that the ve-year limitation period of actions for damages and the presumption of harm under the Competition Damages Directive are both substantive provisions and thus cannot apply retroactively to cases originating before the Directive entered into force.

Publication of photographs of a product makes it available to the public, Court of Justice rules ursday 28 October

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In its judgment in Ferrari (C-123/20), the Court of Justice held that the publication of photographs of a product results in the making available to the public of a design on a part or component part of that product, provided those parts are identi able at the time that design is made available.

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AG Richard de la Tour: unanimity requirement for extension of entitlement under EU-Korea FTA is unlawful ursday 28 October

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In his Opinion in Commission v Council (Accord avec la République de Corée) (C-275/20), Advocate General Richard de la Tour advised the Court of Justice to annul the Council Decision on the extension of the entitlement period for audiovisual co-productions from EU and Korea, insofar as it introduces a unanimity requirement to a voting procedure.

Council and Parliament reach provisional agreement on European Medicines Agency reform Friday 29 October

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e Council of the EU and the European Parliament reached a provisional agreement seeking to reinforce the European Medicines Agency’s role in crisis preparedness and management for medicinal products and medical devices.

European Judicial Council Network expels Polish National Judicial Council Friday 29 October

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e European Judicial Council Network voted to expel its Polish member, the Krajowa Rada Sądownictwa, for its lack of independence and for failing to safeguard the independence of the judiciary in Poland.

Insights, Analyses & Op-Eds Eﬀective judicial protection for retired MEPs: a comment on Poggiolini v European Parliament and Tognoli and Others v European Parliament by Janek Nowak

Statutory Monopoly on Transport Infrastructure and State Aid Control by Ivan Lazarov

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Analysis of the questions on the existence of competition in the market and the impact on trade between the Member States in light of the State aid rules and the case-law of the Court of Justice in Scandlines Danmark and Scandlines Deutschland v Commission (joined cases C-174/19 P and C-175/19 P).

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Op-Ed on the judgments of the Court of Justice in Poggiolini v European Parliament (C-408/20 P) and Tognoli and Others v European Parliament (C-431/20 P) concerning the notion of a challengeable act in the context of certain measures adopted by the European Parliament by which the pensions of the MEPs were reduced.

Nº77 · OCTOBER 30, 2021

Weekend

Edition stay alert keep smart

No race to the bo om for reserved procurement procedures, but where is the top?

e Right to Be Heard and the Speciality Rule in EAW Procedures. A Missed Opportunity?

by Tom Huisjes

by Leandro Mancano

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Analysis of the case Conacee (C-589/19), in which the Court of Justice ruled for the rst time on how to interpret Article 20 of Directive 2014/24, according to which Member States can reserve public procurement procedures to promote the integration of disabled or disadvantaged people in society.

Op-Ed on the judgment of the Court of Justice in Openbaar Ministerie (Droit d’être entendu par l’autorité judiciaire d’exécution) (joined cases C-428/21 PPU and C-429/21 PPU), in which the author argues that the judgment advances procedural rights in judicial cooperation in criminal ma ers, but that it also represents a missed opportunity to make full use of the increasingly integrated system of EU criminal justice for the bene t of the persons concerned.

Last station before ‘Polexit’?

LOT v Commission (T-240/18 and T296/18): e Commission May Depart From the Traditional Market De nition Approach Based on ‘O&D’ Routes Where the Target Airline Has Ceased Operations

by Christophe Hillion

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Sixth Op-Ed on the EU Law Live Symposium on the EU law implications of the Polish Constitutional Court Decision in case K 3/21, focusing on the consequences of the decision as leading to a potential withdrawal of Poland from the EU under Article 50 TEU, the so-called ‘Polexit’.

by David Pérez de Lamo and Carmen Rubio Bañeres

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Analysis of the General Court’s judgments in Cases T240/18 and T-296/18, focusing on the endorsement of the Commission’s market de nition, which departs from a decisional practice in the air transportation sector focused on origin and destination (‘O&D’) city pair routes.

Nº77 · OCTOBER 30, 2021

Weekend

Edition stay alert keep smart

Library - Book Review

Francisco Javier Donaire

Dimitris N. Chryssochoou, Christos V. Gortsos, Vassilis G. Hatzopoulos and Argyris G. Passas

European Governance in Times of Uncertainty Review of a book which contains a rather scienti c collection of studies on several of the European integration’s governance ‘classical’ present, past and future issues, suitable for both scholars and non-expert readers.

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