Weekend Edition Nº79 by eulawlive

Nº79

NOVEMBER 13

2021

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LEIGH HANCHER

‘PIPELINES ARE NOT CLEMENTINES’ CHALLENGING DIRECTIVES IN ANNULMENT PROCEEDINGS AND THE REQUIREMENT OF ‘DIRECT CONCERN’: ADVOCATE GENERAL BOBEK’S OPINION IN NORD STREAM 2

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Nº79 · NOVEMBER 13, 2021

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‘Pipelines are not Clementines’ Challenging Directives in annulment proceedings and the requirement of ‘direct concern’: Advocate General Bobek’s Opinion in Nord Stream 2 Leigh Hancher

Introduction e process frequently referred to as the ‘energy transition’ away from a fossil fuel-based economy to one largely driven by renewable energy sources is unlikely to be a smooth one in any of the Member States of the EU, or indeed in any jurisdiction where major changes to the way our energy is produced and consumed are expected. Legal challenges are inevitable, and it is in order to anticipate and minimize their potential impact that legislators can resort to various techniques when establishing a fair framework to realise such a signi cant transition. ese techniques range from transitional arrangements, compensation provisions, grandfathering, exemptions and derogations, depending on the policy to be pursued. ese are tried and trusted techniques that aim to protect accrued legal rights to a certain degree. e prohibition of a retroactive application of new rules to uphold legal certainty is a generally acknowledged principle of law, even in economies undergoing transitions. It applies equally to the energy sector – albeit or rather because − this is a sector undergoing major transition. But what if access to justice and legal protection is inadequate or even ‘missing in action’? And what if access to the rights and remedies as currently provided for in the bifurcated EU system of national as well as European remedies may prove elusive or also, ‘missing in action’? It should not be forgo en that the principle of eﬀective judicial protection is itself an important contribution of the CJEU to the very a ributes of European Union law (1). It justi es the principles of primacy and direct eﬀect of EU law, the obligations imposed on national courts to interpret the law in accordance with EU law and to apply remedies even when not provided by national legal systems, and their obligation to ensure the judicial means of protection of the rights of individuals. But for private parties that are not the addressees of EU acts, the primary avenue to challenge a legal act from the EU has generally been through the preliminary rulings procedure under Article 267(1) TFEU. While the availability of the

i. Professor of European Law, Tilburg University, Professor of Energy Markets, Univeristy of Bergen, Professor of EU Energy Law, FSR/RSCAS/EUI. 1. For example, the Judgment of the Court of Justice (Grand Chamber) of 24 June 2019, Commission v Poland (C-619/18, EU:2019:531) recalled that the principle of eﬀective judicial protection is a general principle of EU law, which Article 47 of the Charter of fundamental rights has only reaﬃrmed (para. 49).

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preliminary rulings option does not exclude a direct Even if European law is supposed to challenge before the CJEU under Article 263 TFEU, the strict standing requirements for private parties as rst for- offer individuals or organisations a mulated in the old ‘clementines’ case, Plaumann (2), inva‘complete system of legal remedies riably exclude that option (3) in practice. Conversely, the potential availability of a direct action may exclude the and procedures’ in theory, as AG availability of the preliminary reference option. at Bobek points out in his recent means individuals could be le empty handed. e many shortcomings of using the preliminary rulings procedure opinion, in practice this may turn to challenge legal acts of the EU and to provide effective juout to be a major obstacle race dicial protection have been discussed in countless academic publications and by various Advocates General of the Court of Justice. Even if European law is supposed to offer individuals or organisations a ‘complete system of legal remedies and procedures’ in theory, as AG Bobek points out in his recent opinion, in practice this may turn out to be a major obstacle race. is inevitably raises the question of whether any interests are served in maintaining high and o en unpredictable hurdles for individuals ‘have their day in court’. Indeed international organisations such as the Aarhus Convention Compliance Commi ee (ACCC) has repeatedly recommended that the CJEU amends its judicial practice and allow for the admissibility of direct actions brought by NGOs in environmental ma ers (4). e energy transition is likely to be anything but smooth. e Commission has acknowledged the need to ensure that ‘nobody is le behind’ in this complex but urgent process. e gas pipeline from Russia to Germany, known as Nord Stream 2 is a good illustration of the many legal challenges that can arise – both procedural as well as substantive. is project has commanded a high political pro le and a racted considerable a ention from law makers – including the European Union, with the result that the parties concerned now face a fundamentally altered legal framework within which to operate their pipeline business. e Nord Stream 2 project has now given rise to various legal disputes on different legal aspects in different legal fora (5). is contribution will focus on one set of procedures – the action for the annulment of an amendment to the Gas Directive of 2009 before the Court of Justice, and will do so in the light of the recent opinion of Advocate General (AG) Bobek in Case C-348/20 P (6). As will be explained, this Opinion is based on established precedent –

3. See in this respect, the recent Judgement of the Court of Justice (Grand Chamber) of 15 July 2021, Fédération bancaire ançaise (FBF) (C-911/19, EU:C:2021:599). 4. ACCC/C/2015/128 European Union, ndings of 27 March 2021, para. 123, repeating previous ndings in Report of the Compliance Commi ee, Findings and recommendations with regard to communication ACCC/C/2008/32 (Part I) concerning compliance by the European Union, 14 April 2011, ECE/MP.PP/C.1/2011/4/Add.1, para. 89. 5. A claim under the Energy Charter Treaty is currently pending in the form of Nord Stream 2 AG v. European Union, PCA Case No. 2020-07. 6. Opinion of Advocate General Bobek of 6 October 2021, Nord Stream 2 AG v European Parliament and Council of the European Union (C-348/20 P, EU:C:2021:831).

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even if ‘pipelines are not clementines’, as the AG points out. Although the measure at issue is a general legislative act, the adoption of which was politically controversial, this should not mean that the current standards of judicial protection should be le blowing in the winds.

e Project, the Gas Directive and its Amendment Back in 2015 a new project company (NSP2AG) (7) was set up to realise the planning and construction of the Nord Stream 2 pipeline (NoS2). NoS2 runs in parallel to the rst Nord Stream pipeline that was completed in 2012 – to bring gas from Russia to Germany for onward supply into Europe. Pipeline construction is a complex ma er which requires extensive planning and investment over the longer term. Financing agreements were concluded between NSP2AG (as borrower) and Gazprom, Shell (NL/UK), OMV (Austria), Wintershall (Germany), Uniper (Germany) and Engie (France) (each as lenders) in April and June 2017. At the time the project was started, the relevant rules applicable to the operation of gas infrastructure including interconnectors were set out in the Gas Directive 2009/73/EC (the ‘GD’) (8). Its Article 36 allowed for an exemption for new (o en ‘merchant’) pipeline interconnector investments under certain conditions (9) − but as NoS2 just as its predecessor NoS1 was not considered to fall under the GD at the time, NoS2AG did not apply 7. Nord Stream 2 AG is based in Switzerland. e original joint-venture was supposed to be responsible for the design, nancing, construction and operation of two submarine gas pipelines with a throughput capacity of 27.5 billion cubic meters per year, connecting the Russian part of the Baltic coast with the German coast near Greifswald. 8. Directive 2009/73/EC of the European Parliament and the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, OJ 2009 L 211 p. 94. 9. Under Article 36 major new gas infrastructure, namely interconnectors, LNG and storage facilities, may, upon request, be exempted, for a de ned period of time, from unbundling, third-party access and certain other rules of the Gas Market Directive. e exemption is available where the nal investment decision has not been taken.

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for an exemption from a regime which did not apply to it in the rst place. On 17 April 2019, however, the European Parliament and the Council adopted Directive (EU) 2019/692, which amends the 2009 GD (the AD) (10) to extend its applicability to EU Member States’ territorial waters. By modifying the de nition of an ‘interconnector’, the AD extended the scope of the Directive to the territorial sea of the Member State where the rst interconnection point (IP) is located (11). Prior to the amendment EU gas market regulation applied downstream from the landing terminal only. e legal, operational, and economic impacts of the extension of the GD 2009 as now amended on the affected operators are potentially considerable. In practice, however, the number of affected pipeline operators has been limited to a single pipeline due to the derogation regime introduced by the AD. Article 49a AD (12) complements Article 36 GD by creating a new and separate derogation regime for pipelines that were ‘completed before 23 May 2019’ (emphasis added). A derogation from the GDs main rules to which all owners of gas transmission infrastructure should comply (ownership unbundling, third party access and tariff regulation) can only be granted by Member States ‘for objective reasons such as to enable the recovery of the investment made’ (13). Article 49a uses the term ‘completed’ before 23 May 2019, as opposed to ‘operational’ . But if the derogation would be narrowly interpreted and only applicable to pipelines that were already fully operational, it would not be available to NoS2 because it was not fully operational on 23 May 2019 (14). Indeed, the EU Commission was well aware of the unique situation of NoS2, and it was already known that the pipeline would not be fully operational on 23 May 2019. e ‘Fact Sheet’ published by the Commission when it tabled its proposed amendment explains that NoS2 is the only advanced project that would be affected by the amendment (15). e impact of the amendment on NoS2 was not just an unfortunate oversight.

10. Directive 2019/692/EU of the European Parliament and of the Council of 17 April 2019 amending Directive 2009/73/EC concerning common rules for the internal market in natural gas, OJ 2019 L117, p. 1. 11. According to Article 1 (1), ‘(17) “interconnector” means a transmission line which crosses or spans a border between Member States for the purpose of connecting the national transmission system of those Member States or a transmission line between a Member State and a third country up to the territory of the Member States or the territorial sea of that Member State.’ 12. Recital 4 of the AD explains the reason for the derogation under Article 49a: ‘To take account of the lack of speci c Union rules applicable to gas transmission lines to and from third countries before the date of entry into force of this Directive, Member States should be able to grant derogations from certain provisions of Directive 2009/73/EC to such gas transmission lines which are completed before the date of entry into force of this Directive.’ Article 49a provides that a Member State may decide on a derogation from unbundling, third-party access and certain other rules of the Gas Market Directive for an interconnector between that Member State and a third country if the interconnector was completed before 23 May 2019. 13. Article 49a is less strict than Article 36 as an Article 36 exemption is only available to potential, new investors who have not yet taken investment risk in a new interconnector. e investors to whose ‘existing’ pipelines Article 49a applies, by contrast, have taken investment risk (and invested) before the Amending Directive became applicable as of 23 May 2019. 14. Nord Stream 2AG applied for the derogation under Article 49a to BNetzA – the German Regulatory Authority but the application was denied as the pipeline was not completed by the required date. See here (last accessed 9 October 2021). 15. With references to European Commission Fact Sheet, ‘Questions and Answers on the Commission proposal to amend the Gas Directive (2009/73/EC)’, MEMO/17/4422, 8 November 2017 (answer to question 10). See also, European Parliament Questions, Answer given by Mr Arias Cañete on behalf of the European Commission (E- 004084/2018(ASW)), 24 September 2018.

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e Order of the General Court NoS2AG challenged the AD before the General Court and argued inter alia that the AD denies it the possibility of being granted a derogation notwithstanding the magnitude of the investments incurred as at the date of adoption of the AD, and even before it was rst proposed, whereas all other existing ‘offshore import’ pipelines are eligible for derogation (16). Indeed, these pipelines have now all been granted a derogation on the basis of Art 49a AD (17). In support of the action, NoS2AG presented a number of pleas, including infringement of the general EU law principle of equal treatment. In its Order in Case T-526/19, Nord Stream 2 v Parliament and Council, (18) the General Court rejected the application, primarily on the grounds that a challenge to a Directive – as an act of general application − should be mounted through the national courts and focused on the national implementing acts, to be challenged by way of the preliminary reference procedure (Art 267 TFEU) (19), as opposed to by means of a direct action before the European courts (based on Art 263(4) TFEU). e General Court focused on whether the AD was of direct concern to the applicant and seems to have deliberately ignored the fact that it was uniquely and individually impacted by this measure. For private parties that are not the addressees of EU acts, the preliminary rulings procedure under Article 267(1) TFEU is the usual route to challenge those acts. Resort to the preliminary rulings option does not exclude a direct challenge before the CJEU under Article 263 TFEU, the strict standing requirements for private parties as rst formulated in Plaumann (20), invariably exclude that option in practice. Conversely, the availability of a direct action may exclude the availability of the preliminary reference option (21). e many shortcomings of using the preliminary rulings procedure to challenge legal acts of the EU and to provide effective judicial protection are well known (22). e Court’s caution in allowing direct access for individuals is primarily to be a ributed to the impact this would have on its caseload, but may also re ect different national legal traditions with strict rules on standing, (such as the German administrative law tradition) (23). 16. As to the other ve import pipelines potentially affected by the AD, namely the parallel NS1 project, and the Greenstream, Medgaz, Maghreb-Europe Gas Pipeline and Transmed pipelines – these could and indeed have all quali ed for a derogation as they met the deadline imposed by Art 49a. 17. In the case that gave rise to the Order of the General Court of 20 May 2020, Nord Stream AG (T-530/19, EU:T:2020:213) the owner of NS had also challenged the AD. In this case the General Court held, inter alia, that Nord Stream AG did not have a right to operate and/or continue to operate the Nord Stream dual pipeline system free from any regulatory constraints of the EU, at the very least as regards the part of that gas transmission line located in the territory of the EU, in this instance in the territorial sea of a Member State. Even if Nord Stream AG was part of a limited, identi ed or identi able, circle of operators concerned by the extension of the territorial and/or material scope of Directive 2009/73 does not permit a nding that it is individually concerned by the AD. 18. Order of the General Court of 20 May 2020, Nord Stream 2 v Parliament and Council (T-526/19, EU:T:2020:210). 19. Ibid. For an assessment of the case, see K. Talus ‘Direct Challenges Against EU Acts and Standing Requirements for Private Persons - Order of the General Court on 20 May 2020 in Case T 526/19, Nord Stream 2 v Parliament and Council’, OGEL (pre-publication April 2021). 20. Judgement of the Court of Justice of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107), and, more recently, Judgement of the Court of Justice of 17 September 2015, Mory and Others v Commission (C-33/14 P, EU:C:2015:609, para. 93). 21. See in this respect, the recent Judgement of the Court of Justice (Grand Chamber) of 15 July 2021, Fédération bancaire ançaise (FBF) (C-911/19, EU:C:2021:599). 22. See the well known Opinion of Advocate General Jacobs of 21 March 2002 in Unión de Pequeños Agricultores v Council (C-50/00 P, EU:C:2002:197) and Opinion of Advocate General Bobek of 16 July 2020 in Région de Bruxelles-Capitale v Commission (C-352/19 P, EU:C:2020:588). For a discussion of the academic literature, see P. Craig, EU Administrative Law (OUP 2018) 346-347. 23. For an extensive if somewhat dated comparative analysis, see M. Eliantonio, C.W. Backes, C.H. van Rhee, T.N.B.M. Spronken, and A. Berlee (Eds.), Standing up for your right(s) in Europe: A Comparative study on Legal Standing (Locus Standi) before the EU and Member States’ Courts (Brussels: 2012), especially Chapter 4, that contains very interesting information on this issue. e study – commissioned by the EU Parliament – is also available here.

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e Opinion of AG Bobek in Nord Stream 2 continues the critical tradition established by several of his predecessors but with a close eye on the factual context of the dispute. A er all, as he explains, ‘pipelines are not clementines’ (24). In the examination of the rst plea, the Opinion addresses the issue whether the contested measure can be challenged by an individual even though it is a directive. e Opinion also deals with the second ground of appeal as to access to and reliance upon certain contested documents. Given the limited space available, this contribution will not discuss the second ground of appeal relating to contested documents (25).

First Ground of Appeal: e Contested Measure is a Directive and Cannot be Challenged by an Individual According to a well-established case law, in order to determine whether an EU act is open to challenge, it is the substance of the act that must be examined, the form there of being irrelevant. And so, it cannot a priori be excluded that a directive may produce binding legal eﬀects vis-à-vis individuals. In those cases, they may bring an action for annulment against the directive, if it is of direct and individual concern to them. If they do not meet this test - it is assumed that they can still challenge national implementing measures.

As to the question of whether the AD is of direct concern to Nord Stream 2 AG, the AG nds that it is capable of producing legal eﬀects by extending the scope of the Gas Directive to situations, such as that peculiar to this company, which were not previously caught by that legal act (26). e AG emphasizes that a provision of a directive will only very rarely meet the requirement of direct concern in respect of an individual (point 47). is is already an important departure from the reasoning of the General Court in T-526/19. e General Court seems to suggest that direct appeals should be excluded on a systemic basis (27). e General Court’s approach is, in fact, contradicted by various past decisions of the EU Courts, in which the challenge against a directive was held to be admissible, despite being brought before the deadline for transposition of the directive had expired (28).

24. Point 103. 25. It can be noted that the Advocate General nds that the General Court erred in ordering, on the one hand, the removal from the le of two documents submi ed as evidence by Nord Stream 2 AG and, on the other hand, that the passages of the application and annexes in which those documents were reproduced should not be taken into account. He has opined that the General Court applied a wrong analytical framework when reviewing the admissibility of the documents at issue. Instead of applying the principles governing the production of evidence before the EU Courts, the General Court essentially applied the rules and system laid down in the Access to Documents Regulation - Regulation No 1049/2001/EC of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43. 26. Opinion, points 43 and 44. . 27. Cf. the nding of the General Court in Case T-530/19 at point. 28: ‘Regarding the second scenario referred to in the fourth paragraph of Article 263 TFEU, it should be borne in mind that, in certain circumstances, even a legislative act which applies to economic operators generally may be of direct and individual concern to some of them for the purposes of that provision (see, to that eﬀect, judgments of 17 January 1985, Piraiki-Patraiki and Others v Commission, 11/82, EU:C:1985:18, paragraphs 11 to 32)’ 28. See inter alia the Order of 13 October 2006, Vischim v Commission (T-420/05 RII, EU:T:2006:304, para. 33).

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Adoption of Implementing Measures

It cannot a priori be excluded that a directive may produce binding legal eﬀects vis-à-vis individuals. In those cases, they may bring an action for annulment against the directive, if it is of direct and individual concern to them

e condition of direct concern is not satis ed if there is any additional intervention, by the EU institutions or by the national

e General Court had excluded direct concern on the ground that the provisions of the AD required implementing measures at the national level. e Opinion of AG Bobek stresses that the condition of direct concern can still be satis ed, inter alia, where implementation measures exist but the relevant authorities have no genuine discretion as to the manner in which the main EU act must be implemented. ere is abundant case law on that point (29). e condition of direct concern is satised when the existence of a direct causal link between the contested EU act and the alteration in the legal position of the applicant can be established. e condition of direct concern is not satis ed if there is any additional intervention, by the EU institutions or by the national authorities, which is capable of breaking that link. us, the AG analysed whether the rules of the AD on unbundling, thirdparty access and tariﬀ regulation, which Nord Stream 2 AG considers as imposing new obligations upon it, are of a ‘self-implementing’ nature.

authorities, which is capable

With regard to the rules relating to unbundling, the Opinion recognises that Member States had three different opof breaking that link tions to achieve the goal set by the EU legislature. But the AG emphasised that the choosing of any of these options will inevitably lead to Nord Stream 2 AG’s legal position being altered (30). He concluded that it is the AD itself that immediately affects Nord Stream 2 AG’s position and not the subsequent national transposition measures. Consequently, the General Court’s nding must be vitiated by an error of law. Moreover, the AG pointed out that the General Court failed to examine whether the provisions of the AD on third-party access and/or to tariff regulation could affect Nord Stream 2 AG’s legal position. As these provisions entail new regulation that alter its legal position, they are of direct concern to it.

29. Opinion, point 62. 30. In fact, it will have to either sell the entire Nord Stream 2 pipeline or sell the part of the pipeline falling under German jurisdiction, or transfer the ownership of the pipeline to a separate subsidiary.

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e bo om line of the AG’s approach is substance over form: if, following the adoption of the EU measure, the act that will later be adopted at national level is already a foregone conclusion, it would be rather formalistic to suggest that the individual must still nevertheless wait for weeks, months, or even years to challenge, in this situation, by way of a preliminary ruling, the content of the measure that was already known before (31). As he correctly points out the ‘complete system of legal remedies and procedures’ to which the General Court refers in paragraph 120 of the order under appeal is not meant to be a lengthy obstacle race for applicants (32). Finally, the Opinion recommends that the Court of Justice rule on the issue of whether NoS2AG was ‘individually concerned’ by the AD, although the General Court had not dealt with this test. e AG recalled that the Court has consistently accepted individual concern where the EU institutions were in a position to know who would be impacted when they adopted the contested measure. In his view, not only were the EU institutions aware that, by virtue of the contested measure, the appellant was going to be subject to the newly established legal regime, but they acted with the very intention of subjecting the appellant to that new regime and that all of this appears to be a ma er of common knowledge. He concluded that ‘Justice is o en depicted as being blind. However, at least in my recollection, that allegory is not meant to be interpreted as Justice being unable to see something that is blindingly obvious to everyone else’ (33).

e bo om line of the AG’s approach is substance over form. e ‘complete system of legal remedies and procedures’ to which the General Court refers is not meant to be a lengthy obstacle race for applicants

31. Opinion, point 65. 32. Opinion, point 73. 33. Opinion, point 197.

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Conclusion Access to justice in the EU may still have many characteristics of an obstacle race, but AG Bobek has taken a common sense approach, rmly grounded in past precedent, to eliminating a few of the more pointless obstacles. He has reminded the Court of Justice that the form of the measure at issue is irrelevant – a directive can still be of direct and individual concern, given the facts of the case. It follows that this opinion is certainly not suggesting that a radical approach is needed to achieve the elimination of such obstacles. e European system of judicial protection cannot claim to be oﬀer a ‘complete system’ of protection if individuals are required to follow a legal route – that is indirect challenge through the national courts – that is fraught with uncertainty, delay and unnecessary expense (34). If the Court of Justice follows the AG’s approach it will certainly not open the way for an ‘actio popularis’ and launch a thousand direct challenges before the CJEU. It will however relieve a narrow category of appellants from the requirement to pursue long and complex indirect challenges before national courts until they can nally arrive in Luxembourg.

If the Court follows the AG’s approach it will certainly not open the way for an ‘actio popularis’. It will however relieve a narrow category of appellants from the requirement to pursue long and complex indirect challenges

34. See also the commentary of Prof. R. Caranta, ‘Knock, and it shall be opened unto you: Standing for non-privileged applicants a er Montessori’ Common Market Law Review, (2021) vol 58, nr 1. pp. 163 – 186.

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News Highlights Week 8 to 12 November 2021

Commission’s appeal against General Court’s judgment annulling State aid Decision on Luxembourg’s tax rulings in respect of Amazon published Monday 8 November

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An appeal brought by the European Commission against the judgment of the General Court in Luxembourg and Amazon v Commission (Joined Cases T-816/17 and T-318/18) alleging that that court wrongly rejected the Decision’s primary and secondary nding of the existence of tax advantage was published in the Oﬃcial Journal.

ECtHR: a chamber of Polish Supreme Court is not a ‘tribunal established by law’ due to its lack of independence Monday 8 November

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e European Court of Human Rights concluded in Dolińska-Ficek and Ozimek v. Poland that the applicants’ right to a fair hearing was breached because the Chamber of the Polish Supreme Court that heard their cases did not classify as a ‘tribunal established by law’.

Fundamental Rights Agency publishes report on legal aid for returnees deprived of liberty Monday 8 November

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e EU Agency for Fundamental Rights published a report on ‘Legal aid for returnees deprived of liberty’ nding that eﬀective access to competent legal assistance is a key safeguard to enable migrants in return proceedings to exercise their rights to an eﬀective remedy and access to justice.

Two more actions for nancial compensation against the ECB over revocation of Trasta Komercbanka’s licence published Monday 8 November

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Oﬃcial publication was made of two actions for nancial compensation against the European Central Bank over its decision of 11 July 2016 to revoke the licence of Latvian bank Trasta Komercbanka AS (Trasta Komercbanka v ECB, T427/21 and Fursin and Others v ECB, T-428/21).

ECtHR’s ruling on fairness of criminal conviction imposed by appellate court without rehearing oral evidence from witnesses

Court of Justice: EU law allows automatic recognition of refugee status of minors in order to ensure family reunication

Tuesday 9 November

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e European Court of Human Rights ruled in Ignat v. Romania that the criminal conviction of a person on the basis of the same evidence which had led the rst-instance court to acquit them in the rst place is not per se contrary to the right to a fair trial.

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e Court of Justice held in Bundesrepublik Deutschland (Maintien de l’unité familiale) (C-91/20), that national law can automatically extend as a derived right the refugee status to minors of a recognised refugee in order to ensure family unication.

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AG Koko : EAW provisions in EU-UK Withdrawal and Trade Agreements are binding on Ireland Tuesday 9 November

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Advocate General Koko delivered her Opinion in Governor of Cloverhill Prison and others (C-479/21 PPU), advising the Court to rule that the provisions for the continuation of the European Arrest Warrant in the United Kingdom contained in the Withdrawal Agreement and Trade and Cooperation Agreement between the EU and the UK are binding for Ireland.

Council conclusions on future of European Semester Wednesday 10 November

Eurogroup November 2021 meeting: main takeaways Tuesday 9 November

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e Eurogroup met in Brussels to discuss macroeconomic policy, current challenges in international markets, the digital euro and the Banking Union.

EIOPA: National Bank of Slovakia did not comply with capital requirements recommendation

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e Council of the EU adopted conclusions on the future of the European Semester, the mechanism by which the Commission is to provide country-speci c guidance to Member States on socio-economic policies.

Wednesday 10 November

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e European Union Insurance and Occupational Pensions Authority announced that in its opinion the National Bank of Slovakia did not comply with a recommendation addressed to it.

General Court con rms 2.4 billion eu- General Court upholds Commission deros ne on Google for its abuse of domi- cision to register European Citizens’ Initiative nance in Google Shopping Wednesday 10 November

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e General Court handed down its judgment in Google and Alphabet v Commission (Google Shopping) (T-612/17), largely dismissing Google’s appeal against the Commission’s Decision sanctioning the tech-giant for the abuse of dominant position and con rming the 2.4 billion euros ne.

Wednesday 10 November

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e General Court upheld in Romania v Commission (T495/19) a decision by the European Commission to register the proposed citizens’ initiative ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’, which had been challenged by Romania.

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Commission announces proposal for the future of central clearing ursday 11 November

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e Commissioner for Financial Services, Financial Stability and Capital Markets Union Mairead McGuinness announced a proposal concerning the future way forward for the development of EU-based central counterparties for clearing services.

Court of Justice rejects the appeal against General Court ruling upholding Commission Recovery Decision for Polish State aid ursday 11 November

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Court of Justice rules on national courts’ jurisdiction in actions for damages for competition infringements occurring during transitional period ursday 11 November

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e Court of Justice ruled in Stichting Cartel Compensation and Equilib Netherlands (C-819/19) that national courts have the competence to apply Article 101 TFEU and Article 53 of the European Economic Area Agreement to anticompetitive practices which occurred during the ‘transitional regime’ provided for in Articles 104 and 105 TFEU.

AG Rantos: employers must accommodate trainee workers who have become disabled unless it imposes a disproportionate burden ursday 11 November

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In Autostrada Wielkopolska v Commission (C-933/19 P), the Court of Justice dismissed the appeal lodged by Autostrada Wielkopolska S.A. against the judgment of the General Court (T-778/17), in which the la er dismissed the company’s action against the Commission’s Decision declaring the nancial compensation to Autostrada by Poland as incompatible State aid.

Advocate General Rantos delivered his Opinion in HR Rail (C-485/20), a case concerning the obligations of employers towards trainee workers who have become disabled and are not capable of carrying out their previous job.

Court of Justice: Member States cannot issue European Investigation Orders when their national law does not provide for remedies

Court of Justice interprets application of greenhouse gas emissions rules to ancillary facilities that do not emit greenhouse gases

ursday 11 November

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e Court of Justice delivered its judgment in Gavanozov II (C-852/19), ruling that Member States cannot issue a European Investigation Order when their national law does not provide for any remedies to the issuing of that order.

ursday 11 November

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e Court of Justice issued a judgment in the case Energieversorgungscenter Dresden-Wilschdorf (C-938/19), concerning a dispute on greenhouse gas emissions trading, speci cally related to ancillary facilities that do not emit greenhouse gases.

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AG Pitruzzella advises the Court to dismiss appeal brought by Yieh United against anti-dumping duties on its imports Friday 12 November

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Advocate General Pitruzzella advised the Court of Justice in Yieh United Steel v Commission (C-79/20 P), to dismiss the appeal against the judgment of the General Court (T607/15), dismissing the request of Yieh United to annul antidumping duty on its imports of stainless steel cold-rolled at products originating from Taiwan.

ESA delivers reasoned opinion on Iceland‘s taxi license rules Friday 12 November

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e EFTA Surveillance Authority delivered a reasoned opinion to Iceland for breaching EEA rules on the freedom of establishment in the taxi sector, a move that follows the initiation of infringement proceedings in January 2021.

Foreign Aﬀairs Council on Trade: main takeaways Friday 12 November

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e Foreign Aﬀairs Council met in Brussels, chaired by Executive Vice-President Dombrovskis, to discuss trade-related issues and map out the EU trade agenda for 2022.

Insights, Analyses & Op-Eds e judgment of the Polish Constitutional Tribunal in case K 3/21: What can the Member States do to shield the EU values? by Federico Casolari

e Long and Winding Road Towards the Multilevel Implementation of the Principle of Subsidiarity in the EU by Dolores Utrilla

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Op-Ed on the principle of subsidiarity in which the author argues that any a empt to enhance the implementation of subsidiarity warrants an in-depth assessment of its constitutional functions and how subsidiarity checks are being applied in practice, and puts forward proposals for the enhancement of the Early Warning System.

Eight Op-Ed on the EU Law Live Symposium on the EU law implications of the Polish Constitutional Court Decision in case K 3/21. Federico Casolari explores the possible contribution of Member States in chartering the terra incognita the Polish Constitutional Tribunal has entered.

Nº79 · NOVEMBER 13, 2021

Weekend

Edition stay alert keep smart

e Air France Decision: Testing the Power of the French ‘Constitutional Identity’ Exception to EU Law Primacy

NRW.Bank v SRB: Acts changing the amount of ex-ante contributions are not con rmatory measures’

by Araceli Turmo

by Barbora Budinská

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e French Conseil constitutionnel’s decision on the Air France case, which marks the rst explicit de nition of principles ‘inherent to the constitutional identity’ of France, justifying a constitutional review of provisions derived from an EU instrument, and the rst identi cation of such a principle.

Analysis of the Court of Justice’s judgment in NRW.Bank v SRB (C-662/19 P) nding that the General Court (T466/16) erred in law by dismissing an action against decisions of the Single Resolution Board related to the calculation of the contributions to the Single Resolution Fund.

Restoring Mobility with ird Countries in light of the COVID-19 Pandemic: e Equivalence of COVID-19 Certi cates and the Facilitation of Free Movement

e EU Health Emergency Response and Preparedness Authority (HE ): Institutional Impact

by Lavinia Kortese

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Analysis of the recently adopted Commission’s Implementing Decisions establishing the equivalence of COVID-19 certi cates as a means to restore mobility with speci c non-EU countries.

ibaud Deruelle and Elisabet Ruiz Cairó READ MORE ON EU LAW LIVE

Analysis of the establishment of the Health Emergency Response and Preparedness Authority in charge of tackling crossborder health threats and its impact on the EU strategic autonomy.

An Explicit a Right to the Environment: e Potential of an Environmental Lex Specialis to further ‘green’ the ECHR

First Stress Test for the New EAW Regime post-Brexit – AG Koko ’s Opinion in Governor of Cloverhill Prison and Others (C-479/21 PPU)

by Ioanna Hadjiyianni and Alexandros Vryonides READ MORE ON EU LAW LIVE

by Annegret Engel

Op-Ed analysing international environmental law developments and the enforceable right to a ‘safe, clean, healthy and sustainable environment’ in the context of the European Convention on Human Rights.

Analysis of the Opinion of Advocate General Koko concerning the UK’s requests for the surrender of two criminals under the successor mechanisms of the European Arrest Warrant provided for in the Withdrawal Agreement and the Trade and Cooperation Agreement with the UK and the question of the binding nature of their provisions on Ireland.

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