Weekend Edition Nº84 by eulawlive

Nº84

DECEMBER 18

2021

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JAAP HOEKSMA

THE LEGAL IDENTITY OF THE EUROPEAN UNION

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Nº84 · DECEMBER 18, 2021

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The Legal Identity of the European Union Jaap Hoeksma

e address of the President of the Court of Justice of the European Union (CJEU) to the FIDE-Conference on 4 November 2021 in e Hague, in which he drew a ention to the precarious state of the rule of law in the EU (1), may serve to highlight the academic paradox that, while the EU has been identi ed from a legal point of view as a new subject of international law, political theorists and historians are still in the dark about the nature of the European Union (2). is contradictory state of scienti c affairs is especially regre able in view of the purpose of the Conference on the Future of Europe (3) to give citizens a say in the affairs of the Union. Moreover, the outgoing German Chancellor Merkel has called on the Conference to se le the longstanding question as to ‘what we are’, an organisation of states or an ever closer union? e aim of the present essay is to share a concise legal analysis of the EU Treaties with experts from other academic disciplines and to invite them to participate in a concerted effort to jointly overcome the EU’s persistent identity crisis.

e core of the Treaties e preliminary juridical analysis to be elaborated in this essay starts with an observation concerning article 1 of the Treaty of Lisbon, which came to replace the rejected Constitution for Europe in 2007. It asserts in an unambiguous way that it establishes a union of states, in which decisions are taken as openly as possible and as closely as possible to the citizen. is opening statement contains a clear indication concerning the nature of the EU. e aim of article 1 TEU can only be realised if both the Member States and the Union are functioning on a democratic footing. e principle that decisions in the Union are taken as closely as possible to the citizens implies that democratic control must be exercised at all levels of governance in the Union, from local and municipal councils via regional assemblies to national parliaments and the European Parliament. is declaration of principle is substantiated by article 2, which enumerates the values on which the Union is founded: human dignity, freedom, democracy, equality, the rule of law and respect for human rights. e value of democracy has been elaborated both in relation to the Union and with respect to the Member States. Title II contains the provisions on the democratic principles of the Union, while the articles 7 and 49 are se ing standards for the democratic governance of the Member States. According to article 49 any European state which respects the values referred to in article 2 and which is commi ed to promoting them may apply for EU members-

i. Jaap Hoeksma (1948) is philosopher of law with numerous publications on the nature of the European Union as a new subject of International Law www.wolfpublishers.eu/futureofeurope He has authored the theory of democratic integration and is the inventor of the boardgame Eurocracy. 1. K. Lenaerts, Constitutional relationships between Legal Orders and Courts within the European Union, address FIDE-Conference e Hague, 4 November 2021, full text available here, and at EU Law Live, Weekend Edition nº 81. 2. R. Steenhard, ‘Categorizing the EU as a New Subject of International Law’, Peace Palace Library Blog, 14 April 2021. 3. Conference on the Future of Europe.

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hip. Article 7 TEU is meant to ensure enduring respect for these values by the Member States and provides a procedure to assist faltering Member States in restoring the required commitment to the EU’s values. e primordial importance of the rule of law is accentuated by article 19 TEU, which a ributes the task of ensuring the observation of the law of the Union in the interpretation and application of the Treaties to the Court of Justice of the European Union. In its functioning, the EU is bound by the provisions of articles 4 and 5 TEU. Article 4 posits that competences not conferred upon the Union in the Treaties remain with the Member States and prescribes the Union to respect the essential State functions of its constituent States. Article 5 adds that the limits of the Union’s competences are determined by the principles of subsidiarity and proportionality. In the eld of foreign aﬀairs, the Union may act on behalf of the Member States in areas where it has been given exclusive competence. e Union acts in such cases in its own name and not on behalf of the Member States. However, Member States will be bound by treaties concluded or unilateral measures taken by the Union, not only when exercising external powers but any external competences.

What is the European Union? Twelve years a er the entry into force of the Lisbon Treaty in the autumn of 2009 the question as to what the EU is still remains unresolved. At the last meeting of the European Council, which the outgoing German Chancellor Merkel a ended, she publicly wondered whether we are an organisation of states (Staatengemeinscha ) or an ever closer union? (4) As the academic debate about the nature of the EU and the future of Europe has been stalled for decades and since the proponents of the two competing ideologies have agreed to describe the Union with a neutral term as an organisation sui generis (5), the farewell suggestion of the longest serving member of the European Council prompts a fresh effort to identify the EU. e distinctive qualities of the EU (6) as analysed in the introductory paragraph will form the basis for the present effort. 4. European Council, Press Conference October 22, 2021, as reported here. 5. J. Hoeksma, ‘ e European Union: from organisation sui generis to democratic regional organisation’, Federal Trust, October 2020. 6. e present contribution is conceived as a preliminary effort and does not pretend in any manner whatsoever to be exhaustive.

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e context in which the endeavour will be undertaken in this preliminary essay is provided by international law and the prevailing paradigm in international relations. In his treatise on Perpetual Peace, the German philosopher Immanuel Kant pointed out at the end of the 18th century that states wishing to prevent war should either merge into a federal state or form a confederal union of states (7). In line with the Kantian approach, the Charter of the United Nations distinguishes between sovereign states and regional organisations of states (8). As the European Communities were established in the a ermath of the Second World War with a view to end the continuous circle of warfare in Europe, one school of thought insisted that the end goal or nalité politique of the process of European integration was to create a federal European state, which could be described in analogy to the United States of America as the United States of Europe (9). e other ideology argued instead that the purpose of the endeavour was to establish an association of sovereign states (10).

Neither state nor union of states Seventy years a er the foundation of its rst precursor, the European Community of Coal and Steal, the EU should nally determine what it is. If the problem is limited indeed to the binary question as to whether it forms a federal state or a confederal association of states, it must rst be investigated if the EU quali es for statehood or not. In other words, would the Union be admi ed as a member of the United Nations if it was to ask for recognition as a sovereign state. e answer is clear and unambiguous. Although the EU has a clearly demarcated territory as well as a considerable population and an effective system of governance and therefore meets the criteria for statehood as mentioned in the 1933 Montevideo Convention on the Rights and Duties of States (11), it does not intend to form a sovereign state of its own (12). As demonstrated above, article 1 in conjunction with articles 4 and 5 TEU prohibits the EU from fostering any aspiration for statehood. In consequence, the EU has never asked for membership of the UN but has established a different relationship with the global organisation of states through Resolution 65/276 of 3 May 2011 (13). is approach has been corroborated by the EU Court of Justice, which concluded in its Opinion 2/13 of 18 December 2014 that ‘the EU is by its very nature precluded from being regarded as a State’ (14). While this initial legal analysis of the Treaty on European Union contains convincing evidence that the EU does not qualify for statehood, the arguments against the quali cation of the EU as a union of states or, for that ma er, as a regional organisation, are even more compelling. e main and most obvious difference between regional organisations and the EU lies in the citizenship of the Union. Article 9 TEU says in plain terms that citizenship of the Union shall be additional to and not replace national citizenship. By extension it may be submi ed that, whereas unions of states and/or regional organisations may have parliamentary assemblies, consisting of parliamen-

7. I. Kant, Zum Ewigen Frieden, Königsbergen 1796. 8. Chapter VIII, UN Charter. 9. G. Verhofstadt, e United States of Europe, Federal Trust for Education and Research, London 2006. 10. P. Magne e, What is the European Union?, Red Globe Press, London 2005. 11. Convention on Rights and Duties of States adopted by the Seventh International Conference of American States. 12. W. van Gerven, e European Union: a Polity of States and Peoples, Stanford University Press, 2005. 13. UNGA, Resolution 65/276 of May 3, 2011. Participation of the European Union in the Work of the United Nations. 14. Opinion of the Court of Justice of 18 December 2014, 2/13, EU:C:2014:2475.

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tarians from the respective member states, the citizens of the EU are represented at Union level by their directly elected European Parliament. Article 14(2) TEU prescribes that the European Parliament shall be composed of representatives of the Union’s citizens. In short, regional organisations are by de nition undemocratic, whereas the EU works as a European democracy. A third diﬀerence between the two subjects of comparison is that unions of states are based on the principle of unanimity and that the participating states have the right of veto, while decisions in the EU are made in ever wider elds by quali ed majority voting. As a rule, moreover, unions of states do not have single currencies (15). e common denominator underlying these diﬀerences is that unions of states, including regional organisations, are based on the principle that the participating countries retain absolute sovereignty, whereas the EU is built on the practice of shared sovereignty. As a result of this concise legal investigation, it may be submi ed that the EU is not a sovereign state and that its member states have voluntarily ceased to exercise absolute sovereignty.

It may be submi ed that the EU is not a sovereign state and that its member states have voluntarily ceased to exercise absolute sovereignty

Terra incognita Fortunately, the fact that the European Union quali es neither as a state nor as an organisation of states does not imply that it should be impossible to analyse the constitutional architecture of the EU and to determine the nature of the Union. On the contrary, the very elements, which mark the differences between the EU with states on the one hand and with regional organisations on the other hand, also provide the necessary leads for the positive identi cation of the EU as a democratic polity in international law. At this juncture, however, the reader and the author have to realise that they are entering a terra incognita beyond the Westphalian paradigm, that is beyond the system of international relations which underlies the writings of Kant and the functioning of the organisation of the United Nations. Since the construction of the new European polity started seventy years ago, this effort is long overdue. While this failure may be partly a ributed to the current academic climate with its emphasis on peer reviews, the consequences are that theorists have been unable to come up with an explanatory model for the contemporary realities in Europe. Instead, they have se led for the unproductive if not paralysing compromise of describing the EU as an organisation sui generis (16). at being said, the legal reasoning to be applied is rather straightforward. As the EU is not a state in the sense of the organisation of the United Nations, it should be investigated in which aspects the Union differs from regular regional organisations. e answer is provided by the treaties, in particular by the rst articles of the Lisbon 15. With the exception of Belgium and Luxembourg, A. Bakker, Met gelijke munt, Contact, Amsterdam 1996. 16. R. Bellamy and J. Lacey, Political eory and the European Union, Routledge, London, New York, 2017.

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e EU distinguishes itself from other regional organisations as it aspires to work on a democratic footing. is legal evidence amply underpins the conclusion that the EU can be identi ed in its present form with a new juridical term as a ‘democratic regional organisation

Treaty. e EU distinguishes itself from other regional organisations as it aspires to work on a democratic footing. According to article 1 TEU the EU is construed as a union, in which decisions are taken as openly as possible and as closely as possible to the citizen. As demonstrated above, this founding principle nds elaboration in the following articles, notably but not exclusively in the provisions on the democratic principles contained in Title II TEU. is legal evidence, provided by the existing treaties, amply underpins the conclusion that the EU can be identi ed in its present form with a new juridical term as ‘a democratic regional organisation’.

Democracy and the rule of law In addressing the internal aspect of governance, it should be noted that the Westphalian system presupposes that the concepts of democracy and the rule of law can only thrive within the boundaries of a sovereign state (17). In order to break the circle of continuous warfare, however, the 1952 ECSC already departed from the traditional pa ern of international organisation by pooling sovereignty (18). As the principle of shared sovereignty was applied in ever wider elds a erwards, the emerging polity of democratic states had to ensure that the power exercised by the institutions of the then Communities would be subjected to democratic control too (19). e rst step in this direction was taken with the introduction of direct elections for the European Parliament in 1979, albeit its members were chosen by the electorates of the Member States brought together in the Communities (20). e European Parliament only obtained an own constituency a er the introduction of EU citizenship in 1992, which laid the basis for the functioning of the EU as a European democracy. is evolution can be underpinned with the theory of democratic integration. e new theory oﬀers an explanatory model for the gradual develop-

17. J. Hoeksma, e Case Bundesverfassungsgericht vs EU Court of Justice, Wolf Legal Publishers,Oisterwijk 2020. 18. Already characterised as ‘a revolutionary breakthrough of the existing pa ern of international organisation’ by P.J.G. Kapteyn in 1970 in: Kapteyn en VerLoren van emaat, Inleiding in het recht van de Europese Gemeenschappen, Kluwer, Deventer 1970 . 19.P.J.G. Kapteyn, Internationale en supranationale variaties op een parlementair-democratisch thema, Sijthoﬀ, Leiden 1964. 20. Act concerning the election of the Members of the European Parliament by direct universal suﬀrage, OJ 1976 L 278.

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ment of the European polity from a Union of democratic States to a European democracy, i.e. a Union of democratic States, which also constitutes a democracy of its own (21) (22). Title II of the Lisbon Treaty codi es this evolution by introducing its provisions on the democratic principles in the treaties. As the EU Court of Justice established in its verdicts of 19 December 2019 that the European Union has an autonomous democracy, the EU may be identi ed from the internal perspective of the citizens as a democratic Union of democratic States (23).

From the internal perspective of the citizens the EU can be identied as a dual democracy or as a democratic Union of democratic States. Simultaneously, the EU works on the global stage as a democratic regional organisation

In line with the standard formula of EU treaties that ‘this Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe’, the European Union has evolved over the decades to such an extent that it may now be identi ed in academic terms as ‘a democratic regional organisation, which derives its political legitimacy both from its Member States and from the Union’. is clear and unambiguous outcome of the current preliminary investigation into the constitutional architecture and the nature of the EU as construed by the Lisbon Treaty makes it possible to provide a twin answer to the question as to ‘what we are, an organisation of states or an ever closer union’. From the internal perspective of the citizens the EU can be identied as a dual democracy or as a democratic Union of democratic States. Simultaneously, the EU works on the global stage as a democratic regional organisation.

Why Bother? e nal question, which has to be addressed towards the close of this essay, is ‘why bother’. What is the relevance of replacing the generally accepted portrayal of the European Union as an organisation sui generis with the quali cation of the EU as a constitutional democracy? Obviously, it satis es the academic mind. A er all, the initial purpose of scienti c research is to identify the nature of things. Moreover, this contribution establishes that there is life beyond the Westphalian system of International Relations. e EU is a new subject of international law, which can be categorised as a democratic regional organisation with a dual political legitimacy. e practical consequences of this academic eﬀort to establish the nature of the EU have been highlighted by the President of the EU Court of Justice Koen Lenaerts in his above mentioned address of 4 November 2021 to the 21. As the then Communities were identi ed by the European Council at an informal summit in the city of Copenhagen in 1973, ECB Bulletin, 1973-12. 22 J. Hoeksma, e theory of democratic integration, Wolf Legal Publishers,Tilburg 2018. 23. Judgement of the Court of Justice of 19 December 2019, Puppinck and others EU:C: 2019:1113 and judgement of the Court of Justice of 19 December 2019, Junqueras Vies EU:C:2019:1115. Supra note 18.

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FIDE conference in e Hague. e President rang the alarm bells over the rule of law in the EU by publicly stating that the survival of the EU as a European democracy is at stake in the debate over the rule of law. He urged other EU institutions not to leave the protection of the EU’s legal system to the Court alone and to commonly defend the values on which the Union is founded. Seen in this light, the speech of the President of the CJEU lends the utmost urgency to the present essay. A er the e functioning of the EU requires entry into force of the Lisbon Treaty a number of member a measure of mutual commitment states have started backtracking from the post-Westphalian approach. One member state decided to use the opportuand trust, which supersedes the nity of article 50 TEU to withdraw from the EU altogether, standards of behaviour between while others want to reform the Union from within. In his address to the European Parliament of 19 October 2021 the states as formulated in the Polish Prime Minister Morawiecki emphasised that he recontext of the United Nations gards the EU as a traditional union of sovereign states (24), while the Hungarian Prime Minister Orbán argued a month later that he does not want to wake up in a United States of Europe (25). Honourable as these intentions may be from a political point of view, member states’ heads of government, even in their capacity as members of the European Council, cannot place itself above the Treaties. It should not undermine the authority of the highest judicial body of the EU, but rather give it the institutional backing which any constitutional court has to receive from the polity it serves. As a nal remark of this concise legal investigation into the nature of the EU it must be observed that the institutions and the member states should nally start to re ect on the fact that the EU is not only a novel kind of international organisation, but also has developed a new model of governance. e large number of treaties and agreements, which the member states have concluded among themselves, goes further than any international organisation has ever done before. In consequence, the functioning of the EU requires a measure of mutual commitment and trust, which supersedes the standards of behaviour between states as formulated in the context of the United Nations. e nancial crisis of the second decade of the 21st century may be regarded in hindsight as a prelude to the present emergency concerning the rule of law. e European model of Transnational Governance, which has replaced the Westphalian system in the functioning of the EU, precludes the member states from invoking the traditional argument of non-interference in the internal aﬀairs of a sovereign state (26). e forthcoming verdicts in the cases concerning the legality of the conditionality mechanism, which have been brought forward by Poland and Hungary, may serve as a litmus test for the new model (27).

24. Statement by Prime Minister Mateusz Morawiecki in the European Parliament, October 19, 2021, available here. 25. Hungary today, 15 November 2021. 26. J. Hoeksma, e European Union: a democratic Union of democratic States, Wolf Legal Publishers Oisterwijk 2021. 27. Cases Hungary v Parliament and Council C-156/21 & Poland v Parliament and Council C-157/21. e Opinions of Advocate General Campos SánchezBordona in those cases have been published on 2 December 2021, EU:C:2021:974 and EU:C:2021:978.

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Conclusion e wake-up call, which the President of the CJEU conveyed to the academic community, is that one has to acknowledge and come to terms with one’s own achievements in order to be able to defend them. Merely se ling for a description of the EU as an organisation sui generis facilitates the perpetrators of violations of the rule of law to achieve their objectives and to abolish the achievements of the process of European integration. So, the wake-up call is also addressed to the European Commission, which is currently exploring the added value of deliberative democracy in the context of the Conference about the Future of Europe. Unfortunately, however, the EU continues to be described on the Europaserver as ‘a unique economic and political union of 27 European countries’. (28) e lesson, which the European Commission should learn from the wake-up call under discussion, is therefore that you cannot pretend to be a democracy and present yourself as a union of states. Consequently, the European Parliament should heed the call of the President of the CJEU by ensuring that the European Council will respect the a ainments of the Lisbon Treaty and that the character of the EU as a democratic regional organisation with a dual political legitimacy will be strengthened as a result of the current Conference on the Future of Europe. Obviously, the identi cation of the EU as it is does not preclude politicians from formulating their visions on the EU as it ought to be in the world they envisage (29). To date, however, the speculations about the desired future shape of the EU have impeded eﬀorts to identify the EU as it is. As judges have to apply the laws and treaties as they are, it should not come as a surprise that the Court of Justice of the EU and its President should have urged academics in the EU and beyond to nally identify the nature of the Union. Scholars should take up the gauntlet, as it is, a er all, the task of theorists to explore the terra incognita where politicians have to lead.

e lesson, which the European Commission should learn from the wake-up call under discussion, is therefore that you cannot pretend to be a democracy and present yourself as a union of states

28. European Commission, e European Union -What it is and what it does, 2020. 29. K. Doering, ‘Die Ampel steht: SPD, Grüne und FDP legen Koalitionsvertrag vor’ Vorwärts, 24 November 2021.

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News Highlights 13 to 17 December 2021

Request for a preliminary ruling on goodwill indemnity paid upon termination of commercial agency agreement Monday 13 December

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Oﬃcial publication was made of a request for a preliminary ruling in NY v Herios SARL (C-593/21), concerning the payment of a goodwill indemnity upon the termination of the commercial agency agreement in light of the Commercial Agents Directive.

Justice and Home Aﬀairs Council meeting: progress made in digitalisation of justice Monday 13 December

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During the Justice and Home Aﬀairs Council meeting of 10 December 2021, the Slovenian Presidency stated that signi cant progress has been made in the digitalisation of justice, including reaching the provisional agreement on the eCODEX regulation.

EOIPA: Vacancy for position of Legal Expert Monday 13 December

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A three-year renewable position of Legal Expert at the European Insurance and Occupational Pensions Authority in Frankfurt (Germany) was announced. e deadline for applications is 17 January 2022.

Commission nes Abengoa 20 million euros for its participation in ethanol market cartel Monday 13 December

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e European Commission ned the Spanish company Abengoa S.A. and its subsidiary 20 million euros for participating in a cartel concerning the wholesale price formation mechanism in the European ethanol market.

BAWAG PSK challenges ECB’s absorption interest before General Court Monday 13 December

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In BAWAG PSK v ECB (T-667/21), the General Court will hear an action for annulment against a decision by the European Central Bank imposing an absorption interest on Austria’s fourth largest bank, BAWAG PSK.

EU imposes sanctions on military entity Wagner Group for endangering international peace and violating human rights Tuesday 14 December

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e Council of the EU imposed restrictive measures against the Wagner Group, a Russia-based unincorporated private military entity, as well as eight individuals and three entities connected to it for violation of international human rights law.

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ECtHR urges Russia to establish a legal framework to combat domestic violence eﬀectively

Commission approves transaction between two leading French companies in water and waste sectors

Tuesday 14 December

Wednesday 15 December

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e European Court of Human Rights ruled in Tunikova and Others v. Russia that Russia has failed to establish a legal framework to combat domestic violence eﬀectively and the introduction of urgent changes to domestic law and practice in this regard.

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e European Commission approved the proposed acquisition of Suez by Veolia, subject to full compliance with commitments oﬀered by Veolia concerning divestments of certain companies’ business activities.

Commission adopts policy guidance on how to address social and labour aspects of green transition

Commission presents new strategy to make nancial supervisory reporting more eﬀective

Wednesday 15 December

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e European Commission issued a Council Recommendation se ing out speci c guidance helping Member States to ensure a fair transition towards climate neutrality, by addressing the relevant employment and social aspects.

e European Commission presented a new strategy to improve and modernise nancial supervisory reporting in the EU, further implementing the objectives of the European Data Strategy and the Digital Finance package.

Commission proposes new EU Directive to strengthen enforcement of environmental criminal law

New Regulation to deal with Schengen challenges proposed by Commission

Wednesday 15 December

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e European Commission adopted a proposal for a new EU Directive to strengthen the protection of the environment, obliging Member States to take criminal law measures against environmental oﬀences.

Wednesday 15 December

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e European Commission presented a proposal for a Regulation providing for new rules governing the movement of persons across borders to address current challenges within the Schengen Area.

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Council designates members of panel on the appointment of Judges and Advocates General Wednesday 15 December

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General Court partially annuls Commission Decision ordering Romania to recover illegal aid ursday 16 December

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Oﬃcial publication was made of Council Decision 2021/2232, designating the members of the panel provided for in Article 255 TFEU for the appointment of judges and advocates general at the Court of Justice and General Court.

In Oltchim v Commission (T-565/19), the General Court partially annulled the Commission Decision in State aid case SA.36086 by which Romania was ordered to recover 335 million euros of incompatible aid granted to petrochemical company Oltchim.

ECtHR: Failure to protect pro-LGBT peaceful demonstrators from homophobic and transphobic aggressions in breach of human rights

Council and Parliament reach provisional agreement on revised rules for cross-border energy projects to boost green and climate-neutral investments

ursday 16 December

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ursday 16 December

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e European Court of Human Rights ruled in Identoba and Others v. Georgia and in Women’s Initiatives Supporting Group and Others v. Georgia that the failure by the Georgian authorities to protect a group of pro-LGBT peaceful demonstrators from homophobic and transphobic aggression was in breach of the prohibition of inhuman or degrading treatment.

Negotiators of the Council of the EU and the European Parliament reached a provisional political agreement on the revision of the Trans-European Networks for Energy Regulation, contributing to the EU’s climate objectives and the Green Deal.

AG Rantos speci es criteria allowing executing authority of European Arrest Warrant to assess risk of executive interference in trial

AG Pikamäe advises to annul Commission Decision declaring tax advantages for Fiat in Luxembourg as illegal State aid

ursday 16 December

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Advocate General Rantos in his Opinion in Openbaar Ministerie (Joined cases C-562/21 PPU and C-563/21 PPU), found that a mere doubt as to the actual impact of the participation of irregularly appointed judges in the trial in the issuing State of the European Arrest Warrant is not suﬃcient to demonstrate the real risk of a breach of the right to an independent tribunal.

ursday 16 December

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Advocate General Pikamäe advised the Court of Justice to annul the Commission Decision nding that a tax ruling granted by Luxembourg in favour of Fiat Finance allowing for an advanced transfer pricing arrangement constitutes State aid, since that Decision breaches the division of scal competen-

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Vacancy position for référendaire at the General Court Friday 17 December

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A vacancy announcement was made for a référendaire to join the President’s Cabinet at the General Court of the Court of Justice of the European Union (Luxembourg). e deadline for applications is 21 January 2022.

Council and Parliament agree on new rules to keep workers safe from dangerous chemical substances Friday 17 December

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e Council and the European Parliament reached a provisional deal on the Commission’s proposal to update the Carcinogens and Mutagens Directive, which protects workers from risks related to exposure to carcinogenic and mutagenic substances.

AG Campos Sánchez-Bordona: Czech transport infrastructure access authority does not exercise judicial functions and its request for preliminary ruling should be dismissed Friday 17 December

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Advocate General Campos Sánchez-Bordona issued an Opinion in CityRail (C-453/20), nding, inter alia, that Czech Transport Infrastructure Access Authority does not perform judicial functions and thus cannot make a reference for a preliminary ruling to the Court of Justice under Article 267 TFEU.

Insights, Analyses & Op-Eds e 2021 Capital Markets Union Package’: A First Comprehensive Set of Legislative Proposals to Implement the 2020 CMU Action Plan

Spanish Rules on the Liability of the State as Legislature for Breaching EU Law, in AG Szpunar’s Opinion, are Contrary to the Principle of Eﬀectiveness

by Christos V. Gortsos

by Darya Budova

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Analysis of Advocate General Szpunar’s Opinion in Commission v Spain (C-278/20), concerning the Spanish rules on the liability arising from legislative action in cases of loss or damage caused to individuals, when such losses arise from legal rules in breach of EU law.

Op-Ed analysing the implementation of the new Capital Markets Union Action Plan which was adopted in September 2020, amidst the COVID-19 crisis (and partly as a response to that). e author assesses the rst comprehensive package of measures, which include ve legislative proposals and were adopted by the Commission on 25 November 2021.

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We, the Citizens of the European Union: e First Recommendations of the Conference on the Future of Europe’s European Citizens Panels

Somewhere between Poland and Germany – e Hungarian Constitutional Court’s Ruling in the Refugee PushBack Case

by Miguel Mota Delgado and Marc Steiert READ MORE ON EU LAW LIVE

by Dániel Dózsa and Marcin J. Menkes

Op-Ed discussing the recommendations of the Conference on the Future of Europe Panel 2 on ‘European democracy/values, rights, rule of law, security’, ranging from proposals on agriculture, environment, and animal rights, to competition policy and social law.

Eleventh Op-Ed in the EU Law Live Symposium on the EU law implications of the Polish Constitutional Court Decision in case K 3/21. e authors analyse, in light of Polish and German precedents, the Hungarian Constitutional Court Ruling in case X/477/2021, which gave ample basis for Hungary to refuse compliance with the Court of Justice’s judgment in Case C-808/18, however, avoiding an open constitutional conict.

AG Pikamäe’s Opinion in OT: Transparency Meets Data Protection

Cross-Border Recognition of Parenthood for Rainbow Families

by Alberto Miglio

by Alezini Loxa

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Op-Ed on Advocate General Pikamäe’s Opinion in OT v Vyriausioji tarnybinės etikos komisija (C-184/20), addressing the impact of EU data protection legislation on laws prescribing transparency requirements for public administrations.

Analysis of the Court of Justice’s ruling in V.M.A. (C-490/20) nding that the eﬀective exercise of free movement rights for children of same-sex families should not be limited by national measures based on the protection of national identity.

HRVATSKE ŠUME stresses again the importance of the predictability and consistency of rules on jurisdiction

e Future of Climate Change in the EU – A Legal Perspective in the Context of the Conference on the Future of Europe

by Catherine Warin

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by Rui Tavares Lanceiro

Analysis of the Court of Justice’s judgment in HRVATSKE ŠUME (C-242/20), concerning the interpretation of provisions of the Brussels I Regulation, applied to actions for recovery of sums unduly paid by way of unjust enrichment.

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Op-Ed assessing the importance of the Conference on the Future of Europe was also launched in the ght against climate change and environmental challenges and the development of European environmental democracy.

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e Commission’s First Opinion under Regulation 2019/515: An Important Step Towards More Eﬀective Enforcement of the Principle of Mutual Recognition

No Possibility to Seek Compensation for Damages Allegedly Suﬀered in Eulex Kosovo by Francesca Finelli

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Op-Ed on the General Court’s order issued in KS and KD v Council, Commission, EEAS (T-771/20) dismissing the joint action for damages on the basis of manifest lack of jurisdiction. e author argues that General Court’s reasoning is unexpected since it contrasts with the expanding post-Lisbon case law which has progressively extended the breadth of judicial review.

by Nathan Cambien

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Op-Ed assessing the rst-ever Opinion issued by the Commission on 30 September 2021 under the new problemsolving procedure, concerning whether the administrative decision refusing market access of goods in another Member State is compatible with the principle of mutual recognition and with the requirements of Regulation 2019/515. Read on EU Law Live