Weekend Edition Nº78

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Nº78

NOVEMBER 6

2021

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SPECIAL ISSUE

EU FUNDAMENTAL RIGHTS LAW AND POLICY IN THE SHADOW OF THE CHARTER EDITED BY ELISE MUIR AND YANN LORANS

W I T H C O N T R I B U T I O N S B Y:

ÉDOUARD DUBOUT ANASTASIA ILIOPOULOU-PENOT ELISE MUIR YANN LORANS

www.eulawlive.com

1 EU LAW LIVE 2021 © ALL RIGHTS RESERVED · ISSN: 2695-9593


Contents

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Introduction Elise Muir and Yann Lorans

e Charter is a 20-year-old, let us not focus only on the Charter

Édouard Dubout

Constitutionalizing EU Legislative Protection of Fundamental Rights. e Case of (Religious) Anti-discrimination Law Anastasia Iliopoulou-Penot

Towards a Fundamental Right to Work Life Balance? A story in three acts Elise Muir & Yann Lorans

‘Virtuous circles’ in the Shadow of the Charter

Highlights

Week 1-5 November 2021

Insights, Analyses & Op-Eds

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Book Review

by Araceli Turno


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Introduction The Charter is a 20-year-old, let us not focus only on the Charter i

Elise Muir and Yann Lorans

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With the passing of the 20th anniversary of the Charter of Fundamental Rights of the EU, much a ention has been devoted to the Charter. Yet, a great diversity of other instruments form part of EU fundamental rights law. From an internal perspective, legislative acts o en give shape to speci c fundamental rights, such as Directive 2012/29 establishing minimum standards on the rights, support and protection of victims of crime (1), not to state the obvious Anti-Discrimination Directives (2) or the General Data Protection Regulation (GDPR) (3). From an external perspective, international agreements also enhance protection of speci c fundamental rights, for instance the United Nations Convention on the Rights of Persons with Disabilities (4). How do these other legal instruments work and interact in the shadow of the Charter? is concise Special Issue draws conclusions from the Roundtable on EU fundamental rights hosted by the RESHUFFLE Project (5) and the Institute for European Law at KU Leuven on 21 June 2021. It analyses the development of EU fundamental rights law by placing emphasis on the diversity of instruments, at constitutional and sub-constitutional level, involved in shaping these rights, alongside the Charter. e EU’s contribution to European fundamental rights law remains limited and vulnerable, as shown by the exclusion of the Common Foreign and Security Policy from the scope of activity of the Fundamental Rights Agency by the Council or the considerable difficulties of the EU to protect access to an independent judiciary and more generally the rule of law in Poland. Yet, the potential for greater protection of fundamental rights and related challenges that may result from the EU’s multi-layered system of norms and instruments of governance remain under-researched.

i. Professor of European Law and Principal Investigator of the RESHUFFLE Project, KU Leuven. ii.PhD Researcher, Teaching and Research Assistant, Université Paris-Est Créteil and KU Leuven. 1.Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, OJ L 315, 14.11.2012, p. 57. 2.For example Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, 19.7.2000, p. 22. 3. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, p. 1. 4. United Nations Convention on the Rights of Persons with Disabilities (A/RES/61/106),New York, 13 December 2006. 5. is project has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement No 851621. We are grateful to Anastasia Iliopoulou-Penot, Sacha Garben, Édouard Dubout, as well as Stéphane de la Rosa for their presentations, as well as to chairs and discussants for their contributions to the Roundtable.

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Two contributions to the Roundtable are published here. Firstly, Édouard Dubout observes a constitutionalising process of legislation giving shape to the fundamental right to non-discrimination which could, in turn, lead to the emergence of what he understands as a political form of constitutionalism in the EU. Secondly, Anastasia Iliopoulou-Penot re ects on the development of the more novel fundamental right to work-life balance and praises the ‘virtuous circle’ between the constitutional, the legislative and the broader set of instruments for the protection of fundamental rights. A nal paper elaborates on selected strengths and weaknesses of the new normative and institutional landscape for fundamental rights protection in the EU.

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Constitutionalising EU Legislative Protection of Fundamental Rights. The Case of (Religious) Anti-discrimination Law Édouard Dubout

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Which Constitutionalism for the EU? In the study of the relationship between law and politics, it is common to oppose, on the one hand, ‘legal’ constitutionalism, which gives the last word to judges in order to establish the main balances of social life, and, on the other hand, ‘political’ constitutionalism, which, on the contrary, confers a dominant role to the legislator. As far as the EU is concerned, it is tempting to think that it belongs to the ‘legal’ form of constitutionalism, in the sense that the European protection of fundamental rights is originally and mainly a ma er of judicial interpretation. However, the emergence of legislative protection of fundamental rights at the European level projects a more political dimension into EU constitutionalism. is shi is illustrated by the trend to confer a quasiconstitutional status on the European legislative acts of protection of fundamentals rights, in particular in the area of equality and the ght against discrimination (1). We may label it a process of constitutionalisation of EU legislative protection of fundamental rights. Constitutionalising an EU legislative act may be understood twofold. A rst possibility, classical, simply means that the legislative concretisation of a constitutional right is used in order to interpret the content of this right. It provokes a fusion between the constitutional norm and its legislative concretisation, which may ambivalently both enhance and freeze the European protection (2). A second way of constitutionalising an EU legislative act is more surprising. It consists in taking support from the political will expressed in the legislative act in order to interpret the structural principles of EU’s fundamental rights protection system. In this case, a restructuration of EU constitutional equilibrium is generated on the basis of a legislative act. As the sensitive topic of religion shows, this may concern the delimitation of the scope of protection on one side, or even the determination of the level of protection on the other side.

i. Professor of EU Law, Paris Panthéon-Assas University, edouard.dubout@u-paris2.fr 1. A lot of pieces of European secondary legislation have been adopted in the equality eld. We will focus on the ‘general’ one, namely Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 02/12/2000, p. 16. 2. Emmanuelle Bribiosa, Isabelle Rorive and Julien Hislaire, ‘Non-discrimination’, in FabricePicod, CeciliaRizcallah and Sébastien Van Drooghenbroeck (eds), La Charte des droits fondamentaux de l’Union européenne. Commentaire article par article, Bruxelles, Bruylant, 2020, spec. p. 588.

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Scope of Protection It is well known that the scope of the European protection of fundamental rights nds a structural constitutional limit in the respect of the division of competences, as Article 51 of the Charter shows. Although the limits of the EU competences are not always clearly delineated, they are sometimes expressly drawn in primary law in the form of explicitly ‘retained’ competence. Among the competences that the Member States have expressly intended to withdraw from European in uence is that of the religious organization of the State. Under Article 17(1) TFEU, it is speci ed that ‘the Union shall respect and not prejudice the status under national law of churches and religious communities or associations’. Such a reservation of competence is easily understandable, as Article 17 TFEU embodies the diversity component of the EU, the necessary respect of constitutional history and cultural identity of each member State in religious ma ers (3). However, the Court of Justice overrode this reservation of competence to extend the European protection against discrimination to the autonomy of religious organizations and to nd a violation of EU law by national constitutional law standards. In order to do so, the Court used the adoption of Directive 2000/78 on the ght against discrimination in employment and occupation (4) as a basis for an unusual reasoning, which leads to giving more importance to secondary law on the protection of fundamental rights than to primary law on the distribution of competences. In the Egenberger case, which concerned discrimination in recruitment by a religious organization in Germany, the Court of Justice held that Article 17(1) TFEU could not as such preclude EU law from imposing an obligation of thorough national judicial review of recruitment measures taken by religious organizations in the domestic order (5). EU law thus modi es the national constitutional conception of the autonomy of religious organizations, despite the clear repartition of competences in this sensitive area. As article 17(1) TFEU succeeds a similar earlier Declaration –former Declaration no. 11 annexed to the

e scope of the European protection of fundamental rights nds a structural constitutional limit in the respect of the division of competences

3. See, opinion of AG Koko in Congregación Pías Provincia Betania (C 74/16, EU:C:2017:135, pt 31), and opinion of AG Tanchev in Egenberger (C-414/16, EU:C:2017:851, pt 98). 4. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, p. 16. 5. Judgment of the Court of Justice (Grand Chamber) of 17 April 2018, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V.(C-414/16), EU:C:2018:257.

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Treaties – to which Directive 2000/78 refers in its Recital 24, the Court of Justice considered that ‘the EU legislature must have taken that declaration into account when adopting the directive’ (emphasis added) (6). In other words, the legislator of the Union is presumed, in an apparently irrefutable way, to have respected the reservation of State competence when it made the political choice to adopt Directive 2000/78, so that EU law may interfere with national religious organization. Repeated constantly ever since (7), the formula of the presumption of respect of the division of come question of the level of protec- petences by the Directive and the Union legislator is unusual and rather unsupported. e argument tion of fundamental rights in the that it was a ma er of enforcing a procedural guaranEU is also of structural importance, tee of effective control of the absence of religious disas shown by the debates surrounding crimination is not entirely convincing, because the division of competences limits in principle the scoArticle 53 of the Charter pe of European intervention in both the procedural and the substantive limb of fundamental rights. Another explanation for this presumption of respect of the division of powers by the European legislator would be the consideration of the constitutional purpose of the legislative act, which implicitly justi es giving it overriding importance. It is true that the European constitutional model of social life cannot remain totally indifferent to questions of religious organization within the Member States. It is symptomatic in this respect that Member States which openly claim to be ‘illiberal democracies’ de ne themselves as a ached to Christian values, to an identity of religious origin. For the Union to endure, a certain degree of constitutional homogeneity, indispensable for mutual trust and the opening of democratic borders, seems necessary. is may explain why, even if the national constitutional balance could tolerate a large autonomy in the religious organization, the European constitutional balance opposes it insofar as it affects a certain liberal ideal of values at the level of the Union. In that way a simple legislative act may endorse a constitutional dimension to override the structural principle of repartition of competences in the EU law system.

Level of Protection e question of the level of protection of fundamental rights in the EU is also of structural importance, as shown by the debates surrounding Article 53 of the Charter, which lays down the pro homine rule of the application of the most favorable protection of fundamental rights. From the outset, this provision has been seen as problematic because it risks reintroducing disparities in the application of EU law, so much so that the Court of Justice felt the need to rewrite its scope in the Melloni judgment. It added a praetorian limit to the application of the rule of

6. Ibid., paragraph 57. 7. See also Judgment of the Court of Justice (Grand Chamber) of 11 September 2018, IR v JQ (C-68/17), EU:C:2018:696, paragraph 48, and Judgment of the Court of Justice (Grand Chamber) of 22 January 2019, Cresco Investigation GmbH v Markus Achatzi (C-193/17), EU:C:2019:43, paragraph 32.

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favorable protection in the event of an infringement of the ‘primacy, unity and effectiveness’ of Union law (8). It would subsequently be speci ed that this limit only applies in the case of exhaustive harmonization at European level (9), in order to leave a margin of constitutional autonomy to the Member States where legislative harmonization is only partial or minimal. However, the question arises as to whether non-exhaustive harmonization is concerned by the pro homine rule when its main object is the protection of fundamental rights. In this case, there is a clear risk of fragmentation of the European standard of protection. In the face of this question, the case law remains unclear. In the recent WABE et al. case, the Court of Justice was asked about discrimination based on the wearing of a headscarf in the workplace (10), against which German constitutional law offered stronger protection than the European level as previously established by case law (11). In contrast to the Court of Justice, German constitutional case law would require the employer to demonstrate a concrete risk of harm to its interests before lawfully dismissing an employee for wearing a religious symbol. In this respect, German law was more protective of the manifestation of religious beliefs than EU law. As stated in article 8(1) of Directive 2000/78, European harmonization in the eld of anti-discrimination is only minimal in that ‘Member States may introduce or maintain provisions which are more favorable to the protection of the principle of equal treatment than those laid down in this directive’. Despite the clear wording of this clause, Advocate General (AG) Rantos argued against the possibility to allow the application of the more favorable national standard of protection in this speci c case on the ground that the national standard was intended to protect religious liberty and not religious equality (12), which was the main object of the European legislative harmonization. As the more favorable national standard was outside the scope of secondary legislation, it could not bene t from the pro homine rule of Article 8(1) of the Directive. Moreover, the situation was complicated by the fact that any ‘more favorable’ protection of religious convictions would automatically entail a ‘less favorable’ protection of the freedom to conduct a business, which is also pro8. Judgment of the Court of Justice (Grand Chamber) of 26 February 2013, Stefano Melloni v Ministerio Fiscal (C 399/11), EU:C:2013:107, paragraph 60. 9. Judgment of the Court of Justice (Grand Chamber) of 29 July 2019, Spiegel Online GmbH v Volker Beck (C-516/17), EU:C:2019:625, paragraph 21. 10. Judgment of the Court of Justice (Grand Chamber) of 15 July 2021, IX v WABE eV and MH Müller Handels GmbH v MJ(joined cases C-804/18 and C341/19),EU:C:2021:594, paragraph 87. 11. Judgment of the Court of Justice (Grand Chamber) of 14 March 2017, Samira Achbita and Centrum voorgelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV (C-157/15), EU:C:2017:203. 12. Opinion of Advocate General Rantos, IX v WABE eV and MH Müller Handels GmbH v MJ (joined cases C-804/18 and C-341/19),EU:C:2021:144, paragraph 89.

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tected at the European level, thus signi cantly reducing the national margin of manoeuvre for deciding on the con ict of fundamental rights. For this reason, it was tempting, for the AG, to interpret the Directive as se ing a constitutional ‘ceiling’ and not a ‘ oor’ threshold, and therefore to give priority to the European harmonization of protection over the national level. Finally, the Court of Justice gave a somewhat different interpretation of Article 8(1) of Directive 2000/78 in order to determine the applicable level of protection against religious discrimination. Although it seemed to endorse the rather arti cial distinction between religious liberty and religious equality, holding that European harmonization concerns only the la er, it nevertheless accepted that Article 8(1) of the Directive on minimal protection could serve as a basis for the application of the more protective national constitutional law. e result avoids a con ict with national constitutional law. But the reasoning is once again surprising. How can a national provision on religious freedom fall outside the scope of the Directive, while being covered by the more favorable protection provision of the same Directive? According to the Court, the explication for this paradox must be found in the legislative intervention, and in the reason that ‘the EU legislature did not itself effect the necessary reconciliation between the freedom of thought, conscience and religion and the legitimate aims that may be invoked in order to justify unequal treatment’ (13). is time, the reference to the European legislator makes it possible to e importance given to the trace negatively what the political power did not intend to do legislative arbitrage in restrucwith regard to the protection of constitutional rights. It is because the European legislator is deemed not to have wanted turing the European system to harmonize the limits of religious freedom, that the Directive empowers national laws to apply a more favorable stan- of fundamental rights protection dard. e legislative willing becomes the de ning criterion starts a movement towards a for the many structure of constitutional adjudication in the more ‘political’ constitutionalism European Union, i.e. the way in which European and natioat the EU level nal protections t together.

Is EU Political Constitutionalism Desirable? e importance given to the legislative arbitrage in restructuring the European system of fundamental rights protection starts a movement towards a more ‘political’ constitutionalism at the EU level. ere is no doubt that this development is disturbing insofar as it provokes a certain confusion in the legal categories and the hierarchy of norms. It is formally difficult to understand, without contradiction, that a constitutional status can be a ributed to a legislative norm. In turn, the idea of constitutionalisation of legislative acts for the protection of fundamental rights could be a sign of a certain maturity of the European constitutional system, which relies more openly on its political institutions, and no longer only on its judges, in order to decide on the main balances of the European way of life. Whereas at the national level ‘legal’ constitutionalism has gradually reinforced ‘political’ constitutionalism, at the European level the opposite could be true. 13. Judgment of the Court of Justice (Grand Chamber) of 15 July 2021, IX v WABE eV and MH Müller Handels GmbH v MJ (joined cases C-804/18 and C341/19), cit., paragraph 87.

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Towards a Fundamental Right to Work Life Balance? A Story in Three Acts Anastasia Iliopoulou-Penot

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e idea of the need to articulate work and family life has been a component of the European social landscape for quite some time. It is part of the vocabulary of the EU policy on gender equality and reference is made to it in the 1989 Community Charter of fundamental social rights of workers. Since the Treaty of Amsterdam, it appears within the framework of the employment policy coordination, ranging from the Open Method of Coordination to the European Semester. Within time, a shi of vocabulary has taken place from reconciliation to balance, with the la er underlying the intended harmony of the two areas of life rather than potential con ict. Work Life Balance (WLB) currently bene ts from a triple movement: - constitutionalisation, through its inclusion in the Charter of Fundamental Rights; - political momentum, provided by the European Pillar of Social Rights; and - legislative implementation by Directive 2019/1158 on WLB for parents and carers (1). Such triple movement is propitious to the emergence of a fundamental right to WLB with a particular nature: - rst, it can operate as a ‘luggage’ right, containing several speci c rights and eventually giving birth to new ones; - second, the right to WLB has a transformative function as it encourages individuals and society to bring about gender equality and realise a certain vision of social justice; - third, it is a ‘win-win’ right, framed in a consensual language and supporting a positive European narrative. Combining social values and market concerns, the right to WLB can have bene cial effects both for individuals and society, both for workers and employers; and - fourth, it has the potential to become one of the constitutional foundations of European social law, de ning policy trajectories.

i. Professor of European Law, University Panthéon-Assas (Paris II). I am indebted to Elise Muir and omas Maddock for theircomments and suggestions. 1. Directive (EU) 2019/1158 of the EuropeanParliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, OJ L 188, 12.7.2019, p. 79.

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Act I − Constitutionalisation Article 33(2) of the Charter refers to the need to reconcile family and professional life. is provision thus frames a major current societal aspiration in the language of fundamental rights. is is proof of the emergence of a particular European vision of well-being, of a European good way of life, which is constitutionally protected. Of course, article 33(2) suffers from certain shortcomings in terms of its content. e explanations of the provision con rm that it contains a minimalistic codi cation of rights guaranteed by EU secondary law at the time of dra ing of the Charter (2). erefore, there is mention of paid maternity leave, followed by unpaid parental leave, but no mention of paternity leave or of carers’ rights.

A constitutional provision and a bold interpretation by a constitutional court can bring about less concrete change than the establishment of childcare facilities

e Court of Justice’s case law does not yet provide any reading of Article 33(2) going beyond its black le er. A short reference to the provision is made in several judgments (3), but the Court has yet to explore its transformative potential. Having said that, the Charter, as any bill of rights, cannot deliver alone on the promise of WLB. To put it simply, a constitutional provision and a bold interpretation by a constitutional court can bring about less concrete change than the establishment of childcare facilities. So, in this respect, the Charter could be less signi cant than, for example, EU actions, such as encouraging Member States to establish quality and affordable childcare facilities through the se ing of speci c targets (the so-called Barcelona targets of 1992) and funding provided by the European structural funds. More generally, commitment of policy and law makers is essential in order to make WLB a concrete reality (4).

Commitment of policy and law makers is essential in order to make WLB a concrete reality

2. Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p. 17. 3. Judgment of the Court of Justice (First Chamber) of 16 September 2010, Zoi Chatzi v Ypourgos Oikonomikon (C-149/10), EU:C:2010:534, paragraphs 36 and 37; Judgment of the Court of Justice (Fourth Chamber) of 16 July 2015, Konstantinos Maïstrellis v Ypourgos Dikaiosynis, Diafaneias kai Anthropinon Dikaiomaton (C-222/14), EU:C:2015:473, paragraph 39; Judgment of the Court of Justice (Second Chamber) of 7 September 2017, H. v Land Berlin (C-174/16), EU:C:2017:637, paragraphs 31 and 32. 4. See Eugenia Caracciolo di Torella and Annick Masselot, Caring Responsibilities in European Law and Policy. Who cares?, Routledge, 2020.

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Act II − Political Momentum WLB is expressly stated in the Pillar of Social Rights, more speci cally in its Chapter II on ‘Fair Working Conditions’, under Principle 9, whose text is broader than that of Article 33(2) of the Charter. e Pillar was addressed by certain scholars, especially French specialists in labour law, with scepticism. Criticism concerned the alleged lack of ambition for the EU and the centrality of the role of Member States. It underlined the so law character of the instrument, as opposed to the primary law value of the Charter and its Solidarity title. Concern was also expressed with respect to social rights shi ing from fundamental rights enshrined in the Charter to ‘principles’ of uncertain nature. Such criticism proved to be unfair as the Pillar evolves as a European social action programme, involving a variety of actors and tools. Its principles − including WLB − have been welcomed by the Porto Social Summit in last May and have been integrated in the European Semester, which has gained increased importance in the context of the Recovery Plan ‘Next Generation EU’ and the Resilience Facility. WLB is a good example of the Pillar of Social Rights serving as a stepping-stone for achieving social output. e Commission announced, as a key deliverable of the Pillar, a specic set of measures called the ‘Initiative to Support Work-Life Balance for Parents and Carers’. e Initiative included nonlegislative measures, such as guidance, monitoring and funding, alongside the proposal for the WLB Directive. e adoption of this Directive in 2019, along with the European Accessibility Act (5) and the Directive on transparent and predictable working conditions (6), proves that the Pillar can act as a political lever for the adoption of instruments improving the EU’s social credentials.

WLB is a good example of the Pillar of Social Rights serving as a stepping-stone for achieving social output

Other recent evolutions encouraged by the Pillar con rm the relevance of WLB when addressing new challenges in the social eld and its potential to function as an ‘umbrella’ under which new rights can be grouped. is would be the case for a workers’ ‘right to disconnect’, which becomes more and more relevant in the context of intensi ed digitalisation and telework. Even though such phenomena can create opportunities for a harmonious blending of professional and personal life, they have in practice − notably during the pandemic − disturbingly blurred the frontiers between the two and led to confusion and stress (especially for women). Conscious of the growing importance of the new working pa erns, the European social partners have agreed on an Autonomous 5. Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services, OJ L 151, 7.6.2019, p. 70. 6. Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union, OJ L 186, 11.7.2019, p. 105.

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Framework Agreement on Digitalisation (7), which includes modalities for connecting and disconnecting. e European Parliament, constantly referring to WLB, has invited the Commission to present a new legislative instrument on the right to disconnect. In the 2021 Social Action Plan, the Commission has announced ‘an appropriate follow-up’ in this eld, so progress can reasonably be expected. Last but not least, the development of sustainable work pa erns in terms of WLB should concern working-time issues. A report on the implementation of the controversial working-time directive will be presented in 2022. is could open the debate on the need to redesign the framework in this eld and include WLB requirements and goals. Such goals have already received legislative expression in the WLB Directive of 2019.

Act III − Legislative Implementation e WLB Directive is a success story drawing the lessons of a previous failure: the withdrawal by the Commission, in 2015, of its 2008 proposal to revise the 1992 Directive on Maternity Leave (8). e WLB Directive introduces important new minimum rights for parents and carers (with Member States remaining free to provide for higher standards) and expands existing ones. More speci cally, it provides for: - the right of fathers to paid paternity leave of 10 working days. the level of sick pay;

e leave is compensated adequately, at least at

7. European Social Partners Framework Agreement on Digitalisation, 22 June 2020. 8. Proposal for a directive of the European Parliament and of the Council amending Council Directive 92/85/EEC on the introduction of measures to encourage improvement in the safety and health at work of pregnantwomen and women who have recently given birth or are breastfeeding, 3.10. 2008, COM (2008) 637 nal.

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- the right of each parent to paid parental leave of two months. e WLB Directive thus seeks to address the main shortcoming of the 2010 Directive on parental leave (9), which le the issue of compensation to Member States. As most of them opted for unpaid parental leave, parents were simply not encouraged to use it. Article 8(3) of the WLB Directive provides that the de nition of payment by the Member States or the social partners ‘shall be set in such a way as to facilitate the take-up of parental leave by both parents’; - the right of carers to leave of ve working days per year; - nally, the right of parents and carers to request (rather than to obtain) exible working arrangements. e WLB Directive is an instrument aiming at achieving gender equality (10). In this respect, one of its merits resides in the choice to bring men into the picture, thus acknowledging that they have an essential role to play. e conferral of rights to fathers enables and encourages men to invest more in family and caring duties. is concretely gives women opportunities to return or to remain in the labour market. As the WLB Directive is underpinned by a modern model of parenthood -especially fatherhood- its implementation can contribute to changing certain social constructions of how men and women are expected to behave. Unfortunately, it is still not uncommon to consider a woman who does not give up on her work to take care of her young children as a bad mother and a father who takes parental leave as not commi ed enough to his work. e WLB Directive is a piece of legislation participating in the ght against this type of gender stereotype, which is hard to dismantle. It is a signal from the European legislature encouraging the Court of justice, as well as the European Court of Human Rights, to pursue counteracting stereotypes (11).

e WLB Directive can be seen as part of a wider evolution of labour law consisting in the shi of focus from workers to persons in the workplace

Furthermore, the WLB Directive can be seen as part of a wider evolution of labour law consisting in the shi of focus from workers to persons in the workplace. It implies a holistic approach to the individual, keeping pace with societal and demographic change in Europe.

9. Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leaveconcluded by BUSINESS EUROPE, UEAPME, CEEP and ETUC and repealing directive 96/34/EC, OJ L 68, 18.3.2010, p. 13. 10. Álvaro Oliveira, Miguel de la Corte-Rodriguez and FabianLütz, ‘ e New Directive on Work-Life Balance : Towards a New Paradigm of Family Care and Equality?’, European Law Review 3, 2020,295-323. 11. For the Court of Justice, see Judgment of the Court of Justice (Second Chamber) of 30 September 2010, Pedro Manuel Roca Álvarez v Sesa Start España E SA (C-104/09), EU:C:2010:561. In paragraph 36, the Court cautions againstperpetuation of the ‘traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties’. For the ECtHR, see Judgment of the ECtHR (Grand Chamber) of 22 March 2012, Konstantin Markin v. Russia (application no. 30078/06), CE:ECHR:2012:0322JUD003007806 ; Judgment of the ECtHR of 2 October 2012, Hulea v. Romania (application no. 33411/05), CE:ECHR:2012:1002JUD003341105.

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e WLB Directive and the Charter can engage in a virtuous circle. On the one hand, the WLB Directive and national measures implementing it can be generously read by the Court of Justice in the light of Article 33 of the Charter. is has already been the case for the 2010 Directive on parental leave (12). A ‘pro-family’ reading of the WLB Directive is supported by the fact that family is mentioned before professional life in the title of Article 33 of the Charter. Its rst paragraph, which does not refer to profession, makes clear that family as such is the subject of constitutional protection afforded by the EU legal order. On the other hand, the WLB Directive eshes out rights (such as paternity leave, the right to request exible working arrangements and the right to carers’ leave) that can be imported in the framework of Article 33.2 of the Charter and enrich its content. Further, the combination of the two instruments can lead to the recognition of a horizontal direct effect of all the rights to leave, as ‘particularly important principles of EU social law’ (13).

12. Judgment of the Court of Justice (Second Chamber) of 7 September 2017, H. v Land Berlin (C-174/16),EU:C:2017:637,paragraph 44: as the Directive and the Agreement ‘give speci c expression to the right to parental leave also guaranteed as a fundamental right in Article 33(2) of the Charter’, their provisions ‘cannot be interpreted restrictively’. 13. e Court has already quali ed as such the rights to parental leave and to maternity leave: Judgment of the Court of Justice ( irdChamber) of 22 October 2009, Christel Meerts v Proost NV (C-116/08), EU:C:2009:645, paragraph 42 ; Judgment of the Court of Justice (First Chamber) of 8 May 2019, RE v Praxair MRC (C-486/18), EU:C:2019:379, paragraph 49. e same language is used for the right to paid annual leave, deemed capable of producing a horizontal direct effect, through the combined reading of Article 31(2) of the Charter and the Working Time Directive 2003/88: Judgment of the Court of Justice (Grand Chamber) of 6 November 2018, Stadt Wuppertal v Maria Elisabeth Bauer and Volker Willmeroth v Martina Broßonn (joined cases C-569/16 and C-570/16), EU:C:2018:871.

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‘Virtuous circles’ in the shadow of the Charter i

Elise Muir and Yann Lorans

ii

As the contributions above powerfully illustrate, despite the lack of a general fundamental rights competence, the EU is shaping speci c fundamental rights through a combination of new constitutional provisions, legislation and so law instruments. Some elements of the EU fundamental rights policy, called for by P. Alston and J.H.H Weiler two decades ago (1), may thus be progressively materialising in the shadow of the Charter. In the meanwhile, and quite naturally, new constitutional challenges emerge. We shall discuss each point in turn.

Despite the lack of a general fundamental rights competence, the EU is shaping speci c fundamental rights through a combination of new constitutional provisions, legislation and so law instruments

‘Virtuous circles’ shaping EU fundamental rights

In her contribution to this Special Issue, Anastasia Iliopoulou-Penot calls for a ‘virtuous circle’ to shape given fundamental rights, resulting from the interaction of various layers of norms and processes. While she sketches out how such a circle could operate in relation to the right to work-life balance, the strength of her argument is con rmed with reference to other fundamental rights with an older anchorage in EU law. e more traditional elds of non-discrimination or the right to annual paid leave usefully illustrate the evolutionary dynamics of EU fundamental rights lawmaking through various legal instruments. e right to annual paid leave for instance has grown into a fully- edged enforceable EU fundamental right over three decades. It was rst enshrined in the 1989 Community Charter of Fundamental Social Rights of Workers. is non-binding and programmatic instrument was followed by the adoption of a legislative instrument. e rst Working Time Directive was indeed adopted in 1993, making explicit reference to the said Community Social Charter, and guaranteeing a minimum period of annual paid leave that Member States have to ensure (2). Building up on the multi-layered right to annual paid leave, the Court of Justice has for long stressed that the en-

i. Professor of European Law and Principal Investigator of the RESHUFFLE Project, KU Leuven. ii. PhD Researcher, Teaching and Research Assistant, Université Paris-Est Créteil and KU Leuven. 1. Philip. Alston and Joseph H. H. Weiler, 'An “Ever Closer Union” in Need of a Human Rights Policy', European Journal of International Law 9(4), 1998, 658-723. 2. Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time, OJ L 307, 13.12.1993, p. 18.

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titlement of every worker to paid annual leave must be regarded as a ‘particularly important principle of Community social law’ (3). Despite contestation which led to the annulment of the provision imposing Sundays as a weekly rest day (4), the Working Time Directive then progressively contributed to the construction of a legally binding fundamental right to annual paid leave. is right is now enshrined in Article 31(2) of the Charter, which according to the explanations relating to that Charter is ‘based on’ inter alia the Working Time Directive and the Community Social Charter. More recently, the Court of Justice has conferred horizontal direct effect to the right to annual paid leave enshrined in Article 31(2) of the Charter, considering that it is, ‘as regards its very existence, both mandatory and unconditional in nature, the unconditional nature not needing to be given concrete expression by the provisions of the EU’ (5). Despite the clear separation between the different normative layers of protection of annual paid leave that the Court established, the content of the constitutional right has ultimately been infused by the legislative right, leading to substantive convergence.

‘Virtuous circles’ for the effective protection of EU fundamental rights ‘Virtuous circles’ do not just enable the eshing out of a fundamental right, they may also foster its effective protection in national legal orders, well beyond the speci cs of horizontal direct effect introduced above. e WorkLife Balance Directive contains procedural requirements for that purpose, such as those related to the burden of proof in case of dismissal possibly related to the rights covered therein, or the competences of national equality bodies with regard to discrimination falling within the scope of the Directive (Articles 12 and 15).

3. Judgment of the Court of Justice (Sixth Chamber) of 26 June 2001, e Queen v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and eatre Union (BECTU) (C-173/99), EU:C:2001:356. 4. Judgment of the Court of Justice of 12 November 1996, United Kingdom of Great Britain and Northern Ireland v Council of the European Union (C-84/94), EU:C:1996:431. 5. Judgment of the Court of Justice (Grand Chamber) of 6 November 2018, Stadt Wuppertal v Maria Elisabeth Bauer and Volker Willmeroth v Martina Broßonn (joined cases C-569/16 and C-570/16), EU:C:2018:871.

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Fundamental rights may further bene t from the sophisticated enforcement and governance machinery of the EU. In CCOO for instance, private litigation led to a preliminary ruling of the Court of Justice in which a combined reading of the Working Time Directive and of the Charter illustrates the quest for the full effectiveness of the related rights beyond their strict wording (6). As a result, ‘the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured’ (7). Moreover, the Commission may be more ready than in the past to use its powers to enforce EU fundamental rights, including with reference to the Charter. e fundamental rights narrative supporting the infringement policy of the Commission has been increasingly visible in recent years, in particular in procedures against Hungary such as that on academic freedom and the right to education (8). e Commission has also recently initiated the early stages of infringement actions against Poland and Hungary for violations of fundamental rights of LGBTIQ people (9). It may be worth recalling that infringement actions for incorrect or non-noti cation of the measures transposing a Directive (10), including one giving expression to a fundamental right (11), may result in nancial sanctions as from the rst ruling by the Court of Justice (12). Other failures to comply with EU law can lead to nancial sanctions in a second ruling, as illustrated by the Commission’s recent a empt to further press Poland to comply with the Court of Justice’s ruling on the lack of independence and impartiality of the Disciplinary Chamber of the Polish Supreme Court (13). e related procedures may furthermore be accompanied by interim measures, including daily penalty payments such as those of 1,000,000 euros per day just imposed against Poland (14), even when the action is triggered by another Member State (15). e case law on the ma er is evolving very fast (16), thereby drawing a ention to the potential it could have to tackle breaches by the Member States of their ‘structural obligations’ under EU (fundamental rights) law (17). e inability of a national legal system to inte-

6. Judgment of the Court of Justice (Grand Chamber) of 14 May 2019, Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (C-55/18), EU:C:2019:402. 7. Ibid, paragraph 60. 8. Judgment of the Court of Justice (Grand Chamber) of 6 October 2020, European Commission v Hungary (C-66/18), EU:C:2020:792. 9. European Commission, ‘EU founding values: Commission starts legal action against Hungary and Poland for violations of fundamental rights of LGBTIQ people’, press release of 15 July 2021. 10. Judgment of the Court of Justice (Grand Chamber) of 8 July 2019, European Commission v Kingdom of Belgium (C-543/17), EU:C:2019:573. 11. Judgment of the Court of Justice (Eight Chamber) of 25 February 2021, European Commission v Kingdom of Spain (C-658/19), EU:C:2021:138. 12. e duration of the infringement is then calculated with reference to the date of expiry of the transposition period of the directive: see Judgment of the Court of Justice (Grand Chamber) of 16 July 2020, European Commission v Romania (C-549/18), EU:C:2020:563. 13. European Commission, ‘Independence of Polish judges: Commission asks European Court of Justice for nancial penalties against Poland on the activity of the Disciplinary Chamber’, press release of 7 September 2021; see legal action brought under Article 260(2) TFEU. 14. See the Order of the Vice-President of the Court of Justice of 14 July 2021, Commission v Poland (C-204/21 R), EU:C:2021:593, granting interim measures against Poland in a pending case brought under Article 258 TFEU on the application of provisions of national law related in particular to the competences of the Disciplinary Chamber of the Polish Supreme Court, and the more recent Order of the Vice-President of the Court of Justice of 27 October 2021, Commission v Poland (C-204/21 R), ECLI:EU:C:2021:878, granting penalty payment for non-compliance with the said interim measures. 15. Order of the Vice-President of the Court of Justice of 20 September 2021, Czech Republic v Poland (C-121/21 R), EU:C:2021:752. 16. Luca Prete and Ben Smulders, ‘ e Age Of Maturity Of Infringement Proceedings’, Common Market Law Review 58(2), 2021, 285-332. 17. Pekka Pohjankoski, ‘Rule of law with leverage: Policing structural obligations in EU law with the infringement procedure, nes, and set-off’, Common Market Law Review 58(5), 2021, 1341-1364.

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grate these requirements would amount to calling into question the fundaments of the EU legal order. Although it remains an isolated phenomenon to date, the unprecedented challenge by the Polish Constitutional Court in case K 3/21 to the judicial architecture of the EU legal order (18) − debated elsewhere on EU Law Live (19)– ought thus to be treated with utmost concern. A broader set of instruments of EU governance may further support fundamental rights protection. e European Pillar of Social Rights (20) is a perfect example of a non-legally binding tool intended to act as a beacon light for EU action. Next to the Pillar’s contribution to the legislative agenda of the EU, its growing interactions with the European Semester for the coordination of national economic policies and the use of EU funding, two other key instruments of EU governance, may enhance its added value (21). Such potential is particularly visible from the Regulation on the Recovery and Resilience Facility (22). e la er is one of the key instruments to promote the Union’s economic, social and territorial cohesion beyond the COVID-19 crisis as further explored elsewhere by Bruno de Wi e (23). To that effect, the Facility organises the distribution of very large-scale funding on the basis of national ‘recovery and resilience plans’ which shall be consistent with the processes taking place in the context of the European Semester. e extent to which the Facility and its operation will indeed contribute to the implementation of the Social Pillar as called for by Article 4 of the Regulation remains to be assessed, yet the process deserves our full a ention. While a vast majority of the national recovery and resilience plans have been approved and EU funding has started to ow, the Commission has so far not approved those of Poland and Hungary. Speculations are high on the link that the delay may have with concerns for fundamental rights and the rule of (EU) law in these Member States.

e hides behind the ‘virtuous circles’ As EU fundamental rights policy and lawmaking is unquestionably developing, new challenges emerge. We selectively focus here on the role of EU legislation in articulating tensions between competing rights as well as between national and EU layers of protection. To start with, it is remarkable that EU fundamental rights law may de ne its own scope of application. Naturally, EU pieces of legislation giving expression to a fundamental right, such as the EU anti-discrimination directives, have their own autonomous substantive scope, independent from the application of other provisions of EU law. 18. Judgment of the Polish Constitutional Court of 7 October 2021 in case K-3/21. 19. René Repasi, ‘Poland’s withdrawal from the “Community of Law” is no withdrawal from the EU’, EU Law Live, 15 October 2021; Jeffery Atik and Xavier Groussot, ‘Constitutional a ack or political feint? – Poland’s resort to lawfare in Case K 3/21’, EU Law Live, 18 October 2021; David Krappitz and Niels Kirst, ‘ e Primacy of EU law Does Not Depend on the Existence of a Legislative Competence — Debunking the awed analysis of the Polish Constitutional Court’, EU Law Live, 20 October 2021; Paul Craig, ‘ e Rule of Law, Breach and Consequence’, EU Law Live, 21 October 2021; Dimitry Kochenov, ‘Mad in Poland’, EU Law Live, 22 October 2021; Christophe Hillion, ‘Last station before “Polexit”?’, EU Law Live, 28 October 2021. 20. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Commi ee and the Commi ee of the Regions ‘Establishing a European Pillar of Social Rights’, 26 April 2017, COM(2017)0250 nal. 21. We are grateful to Stéphane de la Rosa for suggestions on this point during the Roundtable. 22. 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. 23. Bruno De Wi e, ‘ e European Union’s COVID-19 recovery plan: e legal engineering of an economic policy shi ’, Common Market Law Review 58(3), 2021, 635-682.

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Yet, there is more. EU legislation giving expression to a fundamental right may itself set a threshold of harmonisation that is deemed by the Court of Justice to mark the outer boundaries of EU law. Just as for the broader discussion on the scope of EU law, the case law on this point is permanently under construction. For instance, national measures being more protective than what is required by the Working Time Directive on the (fundamental) right to annual paid leave is considered to be outside the scope of EU law (24): this is due to the fact that the said Directive (only) establishes ‘minimum requirements’ which shall ‘not prevent any Member State from maintaining or introducing more stringent protection measures’ within the meaning of Article 153(2) and (4) TFEU on EU social policy (25). In contrast, the situation of a mobile EU citizen who has been granted a right to reside in a Member State other than her own as a result of national law being more generous than the requirements of the Citizenship Directive on the (fundamental) right to move and reside does fall within the scope of EU law: this is because the mobile EU citizen has made use of her fundamental freedom to move and to reside within the meaning of Article 21(1) TFEU. ese recent cases suggest that the Court will take an incremental approach, with reference inter alia to the wording of related Treaty provisions, to draw the line on which measures protecting EU fundamental rights beyond EU legislative thresholds fall within or outside the scope of EU law. Once it is accepted that a situation is brought within the scope of EU law, EU legislation may further help articulating the tension between different fundamental rights and principles as well as between different layers of protection at EU and national level. Part of the story is now well known. In Melloni, the Court of Justice made clear that when a ma er is fully harmonised by EU law, Member States are not allowed to apply higher levels of protection of the fundamental right at stake (27). In Taricco II, in contrast, the Court showed willingness to allow national courts to apply national fundamental rights standard when there are no speci c provisions protecting a particular right (28). e Court of Justice is currently seeking to esh out its approach to in-between situations, where national leeway ought to be carved out within EU legislative acts. For that purpose, it is remarkable that the Court is adopting a new narrative inspired from the approach of the ECtHR, and referring to the absence of consensus at EU level on speci c ma ers (29). e absence of such a consensus is identi ed owing to a detailed analysis of relevant EU legislation. As noted by Edouard Dubout in his contribution to this Special Issue, this makes it possible for the Court ‘to trace negatively what the political power did not intend to do’ with regard to the protection of fundamental rights. Having observed the absence of consensus, the Court then acknowledges that Member States may have a margin of discretion to balance sensitive diverging interests.

24. is holds as long as the national measure does not ‘undermine the coherence of the EU’s legislative action’, See Francisco De Cecco, ‘Minimum harmonization and the limits of Union fundamental rights review: TSN and AKT’, Common Market Law Review 58(1), 2021, 187-200. 25. Judgment of the Court of Justice (Grand Chamber) of 19 November 2019, Terveys- ja sosiaalialan neuvo elujärjestö (TSN) ry v Hyvinvointialan lii o ry and Auto- ja Kuljetusalan Työntekijälii o AKT ry v Satamaoperaa orit ry (joined cases C-609/17 and C-610/17), EU:C:2019:981. 26. Judgment of the Court of Justice (Grand Chamber) of 15 July 2021, CG v e Department for Communities in Northern Ireland (C-709/20), EU:C:2021:602. 27. Judgment of the Court of Justice (Grand Chamber) of 26 February 2013, Stefano Melloni v Ministerio Fiscal (C-399/11), EU:C:2013:107. 28. Judgment of the Court of Justice (Grand Chamber) of 5 December 2017, Criminal proceedings against M.A.S. and M.B. (C-42/17), EU:C:2017:936. 29. Judgment of the Court of Justice (Grand Chamber) of 17 December 2020, Centraal Israëlitisch Consistorie van Belgiëe.a. and Others (C-336/19), EU:C:2020:1031.

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In this context, the bargain enshrined in the legislative act is used to mitigate constitutional con ict and to order constitutional pluralism in the EU. Rather than focusing on a clash between competing visions of fundamental rights, the discussion is displaced towards (i) what has been harmonised or not, and (ii) the extent to which harmonisation has taken place. For instance, Edouard Dubout is critical of the reasoning of both the Advocate General and that of the Court in Wabe (30), a case on the wearing of headscarves at the workplace, as to whether the Anti-discrimination Directive harmonises religious liberty and/or religious equality. ere is thus li le doubt that the development of EU fundamental rights law and policy combines opportunities and challenges. What emerges from the contributions to this Special Issue is the increasingly intimate interaction between the Court’s interpretation of EU constitutional norms and legislative guidance, as well as with the broad set of new tools of EU governance. Taken in conjunction, these instruments and processes sketch out a nite, nuanced, complex, but at times also powerful landscape for the protection of fundamental rights in Europe.

30. Court of Justice, IX v WABE eV and MH Müller Handels GmbH v MJ (joined cases C-804/18 and C-341/19).

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News Highlights Week 1 to 5 November 2021

EU and US agree to start discussions on a Global Arrangement on Sustainable Steel and Aluminium and suspend steel and aluminium trade disputes

ECtHR clari es that preventive detention of mentally disturbed person who already served a prison sentence for his past crimes is contrary to human rights

Monday 1 November

Tuesday 2 November

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READ MORE ON EU LAW LIVE

Ursula von der Leyen and Joe Biden agreed to start discussions on a Global Arrangement on Sustainable Steel and Aluminium, marking a new step in the joint EU-US efforts to achieve the decarbonisation of the steel and aluminium industries in the ght against climate change.

e European Court of Human Rights ruled in W.A. v. Switzerland that the preventive detention of a person who had already served a prison sentence for his past crimes is contrary to the right to liberty and security, the prohibition of punishment without law, and the right not to be tried or punished twice.

General Court rejects interim measures in action against EU Digital COVID Certi cate Regulation

G-20 Leaders’ Statement: main takeaways

Tuesday 2 November

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Tuesday 2 November

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e President of the General Court rejected to grant interim measures in an action for annulment against the EU Digital COVID Certi cate Regulation in the case Abenante and Others v Council and Parliament (T-527/21).

e leaders of the G-20 met in Rome on October 30-31 where they discussed some of the most pressing global challenges (such as the current energy and supply chain crisis), COVID19 economic and health recovery, and sustainable and inclusive growth.

European Court of Auditors endorses EU agencies’ nancial management during pandemic

US, EU and Partners pledge to reduce methane emissions by at least 30% by the end of this decade

Tuesday 2 November

Wednesday 3 November

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e European Court of Auditors released its 2020 Audit of EU agencies, con rming that, as in previous years, the agencies’ nancial management is in good shape and has not been extremely affected by the pandemic.

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At the COP26 summit in Glasgow, the United States, the European Union, and 103 partners formally launched the Global Methane Pledge, an initiative to reduce global methane emissions, in hopes to achieve the goal of limiting global warming to 1.5 degrees Celsius.


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FIDE 2021 Opening Ceremony Speeches: main takeaways ursday 4 November

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e FIDE 2021 Congress was officially inaugurated in e Hague for the second time in the Conference’s history, with the opening speeches being delivered by President of FIDE, President of the Supreme Court of the Netherlands, President of the Court of Justice, President of the General Court and Vice-President of the European Commission.

FIDE 2021: Brexit Lessons and Plenary Panel Discussion ursday 4 November

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Following the opening ceremony, two plenary sessions were held at FIDE 2021 Congress: (i) on the legal lessons drawn by Brexit, with a speech delivered by Emeritus Professor Paul Craig, and (ii) on the EU’s future role both at home and abroad debated by the panelists from different backgrounds.

Criminal limb of right to a fair trial not applicable to procedures concerning objections to enforcement unless they affect determination of criminal charge, ECtHR rules Friday 5 November

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e European Court of Human Rights declared in Dragnea v. Romania that the criminal limb of the right to a fair trial is not applicable to cases concerning the dismissal of objections to the enforcement of criminal convictions, where such dismissal does not involve determination of the criminal charge against the applicant.

Insights, Analyses & Op-Eds e Modi cation/Amendment of EU International Agreements – Unanimous or Quali ed Majority Decisionmaking? e Opinion of AG Richard de la Tour in Commission v Council (South Korea)

A Step Forward in Ensuring Equality for Persons with Disabilities – TC, UB v Komisia za zashtita ot diskriminatsia, VA by Delia Ferri

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Op-Ed on the judgment in case TC, UB v Komisia za zashtita ot diskriminatsia (C-824/19), which made important headway in the protection of persons with disabilities working within a judicial se ing from discrimination, and, more broadly, in ensuring equality in the workplace.

by Graham Butler

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Op-Ed on the judgment in Commission v Council (South Korea) (C-275/20), which deals with the evolution of EU external relations law and, in particular, whether modi cations/amendments to international agreements of the EU can be subjected to a unanimity procedure.

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Legal Embarrassment a er PSPP and K 3/21: e Bogus Distinction between Primacy and Supremacy and the Need for an Ethics of EU Law Supremacy by Justin Lindeboom

e protection of Intra-EU investment a er PL Holdings. C’est la vie? by Dániel Dózsa

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Op-Ed on the judgment in PL Holdings (C-109/20), which closed the door shut on ‘ad hoc’ arbitration agreements in the proceedings between EU Member States and investors under Bilateral Investment Treaties.

READ ON EU LAW LIVE

Seventh Op-Ed on the EU Law Live Symposium on the EU law implications of the Polish Constitutional Court Decision in case K 3/21. Justin Lindeboom focuses on the distinction between ‘primacy’ and ‘supremacy’ of EU law and advocates for a reconsideration of these categories.

Time when VAT is due and successive payments

CoFoE up to speed? oughts for banking and nance in the EU

by Darya Budova

by Christy Ann Petit

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READ ON EU LAW LIVE

Analysis of the judgment in X-Beteiligungsgesellscha mbH (C-324/20), concerning a preliminary ruling on the time the value added tax is due in respect of one-time services subject to successive payments.

Op-Ed assessing some of the work carried so far within the Conference on the future of Europe in relation to the EU’s economy and focusing particularly on the area of banking and nance.

Clari cation of the concept of ‘insured person’ under Directive 2011/24: Y v. CAK

To copy or not to copy? Vialto Consulting and the scope of OLAF’s power to carry out digital forensic operation

by Pauline Melin

by Koen Bovend’Eerdt

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READ ON EU LAW LIVE

Op-Ed on the case Vialto Consulting (C-650/19 P), concerning the OLAF’s digital forensic operations and particularly, the limits – or absence thereof – of OLAF’s capacity to carry out such operations and their quali cation as ‘access to information’.

Op-Ed on the Court of Justice’s judgment in Y v. CAK (C636/19), which clari ed that a pensioner entitled to bene ts in kind in the Member State of residence at the expense of the State responsible for the pension, is an ‘insured person’ under Directive 2011/24.

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AG Rantos’ Opinion in Volvo and DAF Trucks: Preliminary step in clarifying the temporal application of the Competition Damages Directive by Emilija Berzanskaite

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Insight on the Opinion of Advocate General Rantos in Volvo and DAF Trucks (C-267/20), concerning the temporal application of the Competition Damages Directive (2014/104/EU) and the potential implications of the conclusions for the private enforcement realm in domestic courts.

Library - Book Review

By Araceli Turmo

Luis Miguel Hinojosa Martínez and Pablo Martín Rodríguez

International Markets Regulation and the Erosion of the European Political and Social Model Review of a book that presents a critical view of European law and the breakdown of the European social model during the 2010s following the Eurozone crisis, consisting of contributions by thirteen authors gathered around the two co-editors, who re ect on the state of the European social model.

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