Weekend Edition Nº87 by eulawlive

Nº87

JANUARY 29

2022

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TRAJAN SHIPLEY

THE EU BLOCKING STATUTE AFTER BANK MELLI

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Nº87 · JANUARY 29, 2022

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The EU Blocking Statute After Bank Melli Trajan Shipley

Introduction On 21 December 2021, the Grand Chamber of the Court of Justice delivered its long-awaited judgment in Bank Melli (1), the rst case in which it was called to interpret the EU Blocking Statute (2), a key legislative act in the EU legal order which aims at protecting it from the eﬀects of the extraterritorial application of international sanctions. e EU Blocking Statute has regained prominence since 2018, following the United States’ reimposition of sanctions on Iran a er its withdrawal from the Joint Comprehensive Plan of Action ( JCPOA) (3) and the activation of Title III of the Helms-Burton Act (4). ese sanctions and legislation were subsequently included by the Commission in the Annex to the EU Blocking Statute (5).

e Blocking Statute has been criticised for leaving EU operators to face a difficult choice: comply with such sanctions in order to avoid economic consequences in the U.S. legal order or ignore them but with the risk of facing damages claims in the EU. Moreover, it leaves a wide discretion to the European Commission and national authorities in its enforcement. In its judgment in Bank Melli, the Court essentially interpreted the statute broadly and sought to ensure its effectiveness, and thus the main challenges affecting EU operators remain unaltered. is Long Read will look into the future prospects of the EU Blocking Statute following the Court’s judgment.

i. Trajan Shipley is a Legal Reporter in EU Law Live and an LL.M. Candidate at the College of Europe in Bruges. 1. Judgment of the Court of Justice (Grand Chamber) of 21 December 2021, Bank Melli Iran v Telekom Deutschland (C-124/20, EU:C:2021:1035). 2. Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the eﬀects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom. OJ L 309,29.11.1996, p. 1–6. 3. Joint Comprehensive Plan of Action, signed in Vienna on 14 July 2015. See also UN Security Council resolution 2231 (2015) [on Joint Comprehensive Plan of Action ( JCPOA) on the Islamic Republic of Iran's nuclear programme]. 4. Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 22 U.S.C. §§ 6021-6091. 5. Commission Delegated Regulation (EU) 2018/1100 of 6 June 2018 amending the Annex to Council Regulation (EC) No 2271/96 protecting against the eﬀects of extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom (C/2018/3572). OJ L 199I , 7.8.2018, p. 1–6.

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A look into the Blocking Statute e EU Blocking Statute is a rarely-used but nonetheless important body of rules in EU law. It essentially seeks to preserve the autonomy of the EU legal order vis-à-vis the extraterritorial application of foreign legislation deemed to be contrary to international law and to the trade-related objectives upon which the EU is based. It does so by counteracting or blocking the eﬀects of such legislation through non-enforceability rules and a series of obligations applicable to EU operators.

Enacted in 1996, it was originally concerned with blocking the U.S. Helms-Burton Act (6), which created a private right of action for U.S. plaintiﬀs to claim damages against persons and entities –many of them EU operators– who ‘traﬃcked’ in property that was con scated from them by the Cuban Government on or a er 1 January 1959. However, Title III of the Helms-Burton Act, which creates such right of action, was subsequently suspended for more than two decades by successive U.S. administrations thanks to diplomatic pushbacks from the international community (7). is fact led the Blocking Statute to be largely dormant since its creation. However, the Trump Administration’s activation of Title III and reimposition of sanctions on Iran and Iranian designated entities following the withdrawal from the JCPOA brought the Blocking Statute back to prominence, leaving many EU operators caught in between the obligations deriving from both U.S. and EU law. e Blocking Statute was enacted using Articles 73c, 113 and 235 of the EC Treaty as legal basis. In the merely three months of legislative process in which it was adopted, the Council raised an objection as to the EU’s competence to adopt some of the measures only under Articles 113 and 235 EC, which lead to the inclusion of the EU’s competences on the free movement of capital with third countries as additional legal basis (8). is had the 6. Jurgen Huber,‘ e Helms-Burton Blocking Statute of the European Union’, Fordham Int'l LJ 20, 1998: 699. 7. Boris Bershteyn et al., ‘Under Helms-Burton Act, Entities With Business Ties to Cuba Now at Risk of Lawsuits’, Skadden, Arps, Slate, Meagher &Flom LLP, 2019. 8. Huber (1996). Op. Cit.

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decisive consequence of extending the level of protection under the Blocking Statute to any quali ed operator affected by the targeted laws when engaging in capital operations with the EU (9). at was precisely the case of Bank Melli, a state-owned Iranian bank that has a branch in Germany and concluded several contracts with Deutsche Telekom, who in turn perceives a signi cant amount of its revenue from the U.S. market. e Blocking Statute provides a closed-category de nition of EU operators, who must comply with its provisions and, in particular, with the requirement to inform the Commission if their economic interests are affected as well as with the prohibition to comply with the targeted foreign legislation. EU operators may also be entitled to request damages against a non-compliant operator if the targeted laws have been indeed applied against them. e statute also precludes the recognition and enforcement of court judgments and administrative decisions giving effect to targeted legislation, gives leeway to Member States to determine the applicable administrative penalties for non-compliance, and provides for an exceptional procedure before a joint commi ee of the Commission and the Member States that could result in an authorization to comply partially or fully with the targeted legislation.

e prohibition for EU operators to comply with extraterritorial legislation leaves them in a ‘Catch-22 situation’ (11), forcing them ‘to choose between a rock and a hard place’

EU operators have made clear that the Blocking Statute is unsuccessful in protecting them from abiding by the extra-territorial application of third country sanctions (10). e prohibition for EU operators to comply with extraterritorial legislation leaves them in a ‘Catch-22 situation’ (11), forcing them ‘to choose between a rock and a hard place’ (12), as they must opt for either sacri cing access to the U.S. market or facing substantial damages and penalties in the EU. e Commission seemed to be aware of this situation, advocating for an interpretation of the statute under which EU operators would remain free to decide whether to do business with U.S.sanctioned entities (13). Against this background, the Court’s judgment in Bank Melli was eagerly awaited since it provided for the rst opportunity for an authoritative interpretation of the statute.

e Court’s judgment in Bank Melli In its reference for a preliminary ruling, the Hamburg High Regional Court referred four questions that essentially sought clari cation as to the scope of the prohibition to comply under Article 5(1) of the statute and the consequences of breaching it. e answer to these questions was expected to shed light on the obligations of EU

9. Ibíd. 10. European Commission. Public consultation on the review of the blocking statute (Council Regulation (EC) No. 2271/96) - summary of responses(2021). 11. Anthonius de Vries. ‘Council Regulation (EC) No 2271/96 (the EU Blocking Regulation)’, International Business Lawyer 26, no. 8, 1998, pp. 345-353. 12. Ibíd. 13. Guidance Note — Questions and Answers: adoption of update of the Blocking Statute (C/2018/5344). OJ C 277I , 7.8.2018, p. 4–10.

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e Court’s answer has brought more clarity but not more legal protection for EU operators

operators under the Blocking Statute taking into account, in particular, the freedom to conduct business under Article 16 of the Charter and the extent to which the Blocking Statute limits this right. As already noted by Celia Challet, the Court’s answer has brought more clarity but not more legal protection for EU operators (14). e Court followed most of Advocate General Hogan’s Opinion (15), who had advised against a narrow interpretation of the statute on account of the objective to counter the eﬀects of the foreign legislation concerned. It thus clari ed that the prohibition to comply with secondary sanctions applies even in the absence of an order directing compliance issued by administrative or judicial authorities of the third State. It also held that EU operators may terminate contracts with targeted entities without providing reasons, but it allocated on them the burden of proving in civil proceedings that they did not do so in order to comply with sanctions. However, it held that as long as EU operators do not face disproportionate eﬀects, the annulment of their termination of contracts on account of breaching the Blocking Statute respects the essence of the freedom to conduct business, and only results in an acceptable limitation thereof. is stands in contrast to the narrower approach that many national courts have taken when faced with the same issues (16). For instance, in April 2020 the Dutch Supreme Court held that the EU Blocking Statute does not prevent from complying with a U.S. extradition request against an Iranian citizen allegedly involved in export controls and sanctions violations (17). Similarly, in the national proceedings leading to the Bank Melli case, the Hamburg Regional Court initially held that the termination by Deutsche Telekom of its contracts with Bank Melli was consistent with Article 5(1) of the statute, since that provision allows it to freely decide to commence, continue or cease business activities in Iran (18). It also expressly rebukes the Commission’s approach, laid out in its Gui-

14. Celia Challet, ‘Judgment in Bank Melli Iran: e Court of Justice, Too, is Between a Rock and a Hard Place’, EU Law Live, 2022. 15. Advocate General Hogan’s Opinion of 12 May 2021 in Bank Melli Iran (C-124/20, EU:C:2021:386). 16. For a more detailed account on the approach taken by national courts, see Davide Rove a, Giani Pandey & Agnieszka Smiatacz, ‘Don’t Wake up the (EU) Bear! e Scope of the EU Blocking Regulation 2271/96 in Light of the Recent Preliminary Ruling Reference in Bank Melli V. Telekom Deutschland Case, C124/20’. Global Trade and Customs Journal 16, no. 2, 2021. 17. Judgment of the Dutch Supreme Court of 7 April 2020, ECLI:NL:HR:2020:62. 18. Judgment of the High Regional Court, Hamburg of 15 October 2018, ECLI:DE:LGHH:2018:1015.318O330.18.00.

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dance Note on the Blocking Statute, which had been relied on by Deutsche Telekom. Moreover, despite advising for a broad interpretation of the statute, Advocate General Hogan supported the possibility of justifying a termination of contracts with Iranian listed entities when the EU operator is engaged in a coherent and systematic corporate social-responsibility policy under which it refuses to deal with any company having links with the Iranian regime, to which the Court remained silent. e Court’s approach seems to be primarily concerned with preserving the EU legal order from the extraterritorial eﬀect of U.S. secondary sanctions, even at the expense of narrowing the freedom of EU operators to decide whether they conduct business with targeted entities. While it is true that such freedom is not absolute and that an obligation to conduct business is not novel under EU law (for instance, in the eld of competition law), the judgment is certainly not a step forward in preserving the interests of EU operators, a speci c objective under Article 1 of the Blocking Statute. e Court’s position could be read as an eﬀort to strengthen the position of the EU legal order vis-à-vis that of the U.S., in a similar way as the Schrems (19) saga or as its case law on the autonomy of EU law.

e Court’s approach seems to be primarily concerned with preserving the EU legal order from the extraterritorial eﬀect of U.S. secondary sanctions

However, the judgment does not seem to adopt a strong position on the need to eﬀectively enforce of the statute, particularly given the fact that not all Member States have adopted provisions on penalties for breaching it (20). e Court also censures the Commission’s narrower approach to the statute while at the same time heavily relying on the possibility of complying with sanctions under the Article 5(2) procedure in order to justify the proportionality of the limitation to the freedom to conduct business. is results in a boost in the Blocking Statute’s importance in the eld of international sanctions, but at the expense of upholding the ‘Catch-22’ situation in which EU operators already found themselves.

19. Judgment of the Court of Justice of 6 October 2015, Maximillian Schrems v Data Protection Commissioner (C-362/14, EU:C:2015:650); Judgment of the Court of Justice of 16 July 2020, Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems (C-311/18, EU:C:2020:559). 20. Rove a, Piandey&Smiatacz (2021). Op. cit. pp. 50-51.

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e EU Blocking Statute, as it currently stands, requires signi cant changes in order to be able to pursue its objectives in a more coherent way and not become a burden on EU operators

e future of the Blocking Statute e EU Blocking Statute, as it currently stands, requires signi cant changes in order to be able to pursue its objectives in a more coherent way and not become a burden on EU operators. e Commission is well-aware of this and is currently engaged in a review of the statue in order to include additional deterrence mechanisms and improve its enforcement, including by reducing compliance costs for EU operators (21). is comes together with further policy initiatives aimed at increasing the EU’s strategic autonomy, such as the proposed anticoercion instrument (22). In the summary of results of the open public consultation launched by the Commission (23), the most popular measures by EU operators included providing legal support, targeted commercial restrictions or the possibility to claim punitive damages. ere are further measures that could be reconsidered. Article 6 of the EU Blocking Statute already constitutes a so-called a ‘clawback clause’, which allows for the recovery of damages by persons who have suﬀered prejudice from the compliance with secondary sanctions. e problem with this clawback

21. Communication of the Commission – e European economic and nancial system: fostering openness,strength and resilience. COM(2021) 32 nal. 22. Proposal for a Regulation of the European Parliament and Council on the protection of the Union and its Member States from economic coercion by third countries.2021/0406 (COD). 23. See supra, at 13.

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clause is that it was initially designed to counter the effects of Title III of the Helms-Burton Act, and thus allow EU operators to claim damages from American operators with interests in the EU that had relied on Title III. In the case of secondary sanctions against Iranian entities who bene t from the free movement of capital with the EU, Article 6 serves them as an additional means of defence against EU operators who seek to end business relationships with them due to the increasing costs of doing so. A new Blocking Statute could therefore consider reformulating Article 6 together with Article 11 in order to exclude the possibility of targeted entities bringing claims against EU operators for breach of the Blocking Statute. is could be done by relying solely on Article 207 TFEU as legal basis, which allows for the adoption of measures to implement the EU’s exclusive competence over the common commercial policy (CCP), as is the case with the proposal for the anti-coercion measure. As mentioned above, the original inclusion of Article 73c EC as legal basis was done expressly as a concession to the Council over its reluctance concerning the EU’s competence to adopt certain measures under the CCP. In the post-Lisbon world, reliance on the free movement of capital is no longer necessary and would go in hand with reducing the scope of the availability of the Blocking Statute as a defence mechanism for targeted entities. is would not run counter the right to an effective judicial remedy as these entities could still continue to rely on regular breach of contract provisions under national law in their claims against EU operators. In order to take the Blocking Statute seriously, an EU-wide approach to its enforcement would also bene t the coherence and effectiveness of its objectives. e Commission has already proposed to streamline the processing for authorisation requests and clearer procedures and rules for applying Article 6. A harmonised approach to the applicable sanctions could also be considered bearing in mind that there are a number of Member States that have not yet adopted legislation in that ma er (24). is is an option that EU operators have also favoured in order to avoid a differentiated treatment, together with the creation of an EU body dedicated to the uniform implementation of the Blocking Statute (25).

Conclusion

It sends a strong signal to the international community and to the U.S. in particular, namely that the EU legal order will strongly oppose the eﬀects of secondary sanctions it deems contrary to international law and its interests

24. See supra, at 18. 25. See supra, at 13.

e Court of Justice’s judgment in Bank Melli enhances the autonomy of the EU legal order in the eld of international sanctions by adopting a broad interpretation of the EU Blocking Statute that shields it from the extraterritorial eﬀects of designated U.S. legislation. It is a landmark judgment not only because it interprets the statute for the rst time, but also because it extends to the eld of international sanctions similar considera-

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tions of the Court’s case law with regard to the international dimension of the EU legal order. Undoubtedly, it sends a strong signal to the international community and to the U.S. in particular, namely that the EU legal order will strongly oppose the effects of secondary sanctions it deems contrary to international law and its interests. It also makes it clear to the Commission and national courts that a narrow or weak interpretation of the statute in order to mitigate the consequences that EU operators might face is not acceptable. However, the Court le unresolved two of the most important issues that the Blocking Statute currently faces. First, it heavily relies on the authorisation mechanism to justify the proportionality of the limitation to the freedom to conduct business, which is stringently limited by the quasi-obligation to remain in contracts with listed entities and their use of the statute as a means of defence before national courts. Second, in spite of its interpretation in favour of the effectiveness of the statute, the judgment cannot be categorised as favouring a strong enforcement process. Although the Court was not asked to rule on this, it fails to clearly match an effective interpretation of the statute with a necessary stronger stance of its enforcement, which is still lacking and requires further harmonization at the EU level in the eld of international sanctions. is leads to an inevitable need for a review of the Blocking Statute, which is currently under way by the Commission. e main envisaged changes have already been outlined by both the Commission and EU operators, who seem to agree that the bo om line is that it should become an effective tool not only to ensure the integrity of the EU legal order, as stressed by the Court of Justice, but also for the interests of its operators and their freedom to conduct business. While it is not the only available or desirable solution, a reformulation of the clawback clause and an exclusion of targeted entities from the concept of EU operators would ensure that the Blocking Statute does not become either a rock nor a hard place, but rather an instrument that ensures EU operators to make business decisions free of any third-country interference.

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News Highlights 24 to 28 January 2022

Illumina appeals Commission’s decision imposing interim measures following early acquisition of G IL Monday 24 January

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Oﬃcial publication was made of an action seeking the annulment of the European Commission’s decision, nding that Illumina implemented early acquisition of G IL in breach of EU Mergers Rules and imposing interim measures.

EDPS Opinion welcomes legislative proposal for political advertising Monday 24 January

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e European Data Protection Supervisor welcomed the EU legislators’ proposed Regulation on transparency and targeting for political advertising, but has recommended stricter rules for online political targeted advertising.

ClientEarth challenges Council’s refusal to access of information on the grounds of the Aarhus Convention Regulation Monday 24 January

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e General Court will hear an action for annulment brought by ClientEarth AISBL against a decision by the Council of the EU refusing access to certain documents requested on the basis of the Public Access to Information Regulation and the Aarhus Convention Regulation.

Ombudsman inquiry identi es fundamental rights and operational improvements for Frontex Monday 24 January

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e European Ombudsman identi ed a series of improvements to be taken into account by the European Border and Coast Guard Agency (Frontex) in complying with its fundamental rights obligations and ensuring accountability in relation to its enhanced responsibilities.

EU law professor challenges refusal to access documents on revision of Aarhus Convention Regulation

Council adopts conclusions on EU priorities in United Nations human rights fora in 2022

Monday 24 January

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e General Court will hear an action brought by a Professor of EU law against a decision of the Council of the EU refusing access to certain documents concerning the decision-making process of the revision of the Aarhus Convention Regulation (T-683/21).

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e Council of the EU adopted conclusions on the EU’s priorities in the United Nations human rights fora for 2022, which overall reaﬃrm the EU’s commitment to respect, protect and ful l human rights, democracy and the rule of law in all areas of its external action.

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Ukraine crisis: Council adopts conclusions and Commission announces nancial assistance Monday 24 January

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ECtHR: Continued detention of person aﬀected by psychiatric disorders in an ordinary prison cannot be justi ed by nancial or logistical diﬃculties

e Council of the EU adopted conclusions on the current situation in Ukraine, expressing the EU’s unconditional support for Ukraine’s independence and condemning Russia’s actions.

Tuesday 25 January

Court of Justice to rule scope of public policy exception under Brussels Recast Regulation

Court of Justice quashes General Court’s judgment in Micula, applies Achmea case law

Tuesday 25 January

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e European Court of Human Rights ruled in Sy v Italy that the Italian authorities breached fundamental rights by keeping an applicant aﬀected by psychiatric disorders in an ordinary prison, in spite of domestic court ordering his transfer to a residential centre.

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e Court of Justice will rule on whether the Brussels Recast Regulation extends beyond explicit anti-suit injunctions prohibiting to bring or continue proceedings before a court of another Member State to judgments or orders delivered by courts of Member State (C-590/21).

e Court of Justice ruled in the Micula case that the General Court erred in law nding that Commission had no competence to examine compensation paid following an arbitral award in light of EU State aid rules, and applied its Achmea case law to determine the incompatibility of Romania’s consent to an investor-State arbitration following its accession to the EU.

Court of Justice: obligation on producers of photovoltaic panels to nance management of waste cannot apply retroactively

Court of Justice to rule whether Member States can a ach further conditions to dismissal of data protection oﬃcer under GDPR

Tuesday 25 January

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e Court of Justice ruled in VYSOČINA WIND (C181/20) that Directive 2012/19 is partially invalid, in so far as it breaches the principle of non-retroactivity and obliges producers of photovoltaic panels to nance the waste management from panels which were placed on the market before that Directive entered into force.

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Oﬃcial publication was made of the request for a preliminary ruling lodged by the Bundesarbeitsgericht (Germany) in KISA (C-560/21), concerning the conditions of dismissal of a data protection oﬃcer under the General Data Protection Regulation.

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Vice-President Maroš Šefčovič issues statement on implementation of Protocol on Ireland and Northern Ireland Tuesday 25 January

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Commission corrects methodology and nes again Telefónica and Pharol 79 million euros for entering into noncompete agreement

European Commission Vice President for Interinstitutional Relations Maroš Šefčovič issued a statement following the second meeting with the UK Foreign Secretary Liz Truss on the implementation of the Protocol on Ireland and Northern Ireland.

Tuesday 25 January

Council adopts recommendation on measures aﬀecting free movement based on individual situation of persons

Position for Project Manager at Fundamental Rights Agency

Wednesday 26 January

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e Council of the EU adopted a revised recommendation on measures aﬀecting free movement, establishing a personbased approach that takes as the determinant factor on whether COVID-19 measures should apply whether a traveller holds a COVID-19 vaccination, test or recovery status.

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e European Commission re-adopted a decision against Telefónica and Pharol for entering into a non-compete agreement, in breach of EU antitrust rules, and imposed a ne of 66,894,000 euros on Telefónica and of 12,146,000 euros on Pharol.

Wednesday 26 January

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e EU’s Fundamental Rights Agency has published a vacancy announcement for a Project Manager to join its Institutional Cooperation and Networks Unit in Vienna, Austria.

Declaration on European Digital Rights and Principles proposed by Commission

General Court annuls 1.06 billion euros ne imposed on Intel in 2007 for its abuse of dominant position

Wednesday 26 January

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e European Commission proposed to the European Parliament and Council to sign up to a Declaration of rights and principles that will guide the digital transformation in the EU.

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In Intel Corporation v Commission (T-286/09 RENV), the General Court reassessed the alleged abuse of Intel’s dominant position through conditional rebates a er the case was referred back to it for a new judgment, and this time, canceled a 1.06 billion euros ne in full.

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General Court dismisses action for annulment against amended tender call in which applicant had not participated

Council adopts position on legislative proposal for one common charger for portable electronic devices

Wednesday 26 January

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e General Court delivered judgment in Leonardo v Frontex (T-849/19), dismissing an action for annulment brought by Italian company Leonardo SpA against acts concerning a call for a tender made by Frontex.

Member States agreed on a negotiating mandate for the common charger proposal that aims to make sure that consumers can charge all their portable devices using one common standard port.

EU challenges Egyptian import restrictions before WTO

ECtHR: Annual Press Conference of President Spano and Annual Report 2021

Wednesday 26 January

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e EU requested consultations with Egypt before the World Trade Organization concerning its compulsory import registration requirements, marking the rst formal step in order to challenge the restrictions according to the WTO procedure.

ESA approves four State aid schemes to compensate for losses incurred due to COVID-19 pandemic ursday 27 January

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During the last week, the EFTA Surveillance Authority approved four State aid schemes – two granted by Norway and two by Iceland – oﬀering support to companies that suﬀered nancial losses as a result of the COVID-19 outbreak.

ursday 27 January

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President of the European Court of Human Rights Robert Spano held a press conference to present the results of the Court’s activities, as well as the Annual Report and Statistics for the year 2021.

Spanish legislation requiring tax residents to declare overseas assets or rights is contrary to EU law: Court of Justice judgment ursday 27 January

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e Court of Justice ruled in Commission v Spain (C-788/19) that Spain has failed to ful l its obligations under the free movement of capital provisions by requiring its tax residents to declare overseas assets or rights through an administrative form, establishing penalties in case of non-compliance.

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AG Pitruzzella: transfer of generalised and anonymised PNR data comply with fundamental rights ursday 27 January

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Advocate General Pitruzzella advised the Court of Justice to rule in Ligue des droits humains (C-817/19) that the transfer and the generalised and undiﬀerentiated automated processing of passenger name record data are compatible with the fundamental rights to respect for private life and protection of personal data.

Court of Justice clari es right to compensation payments granted under Natura 2000 ursday 27 January

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EU brings China before WTO over trade practices against Lithuania ursday 27 January

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e EU launched a case against China before the World Trade Organization on account of its ‘discriminatory trade practices against Lithuania’, which come in response to said Member State’s policy towards Taiwan.

New Council Recommendations on COVID-19 free movement and travel published ursday 27 January

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e Court of Justice handed down two judgments in Sātiņi-S (C-234/20) and Sātiņi-S (C-238/20), interpreting the right to fair compensation granted under Natura 2000 framework in light of EU Regulations and the fundamental right to property.

Oﬃcial publication was made of two Council Recommendations, on a coordinated approach to facilitate safe free movement and travel in the Schengen area during the COVID-19 pandemic.

Court of Justice on the concept of ‘undertaking in diﬃculty’ under State aid rules

Commission formally adopts Guidelines on State aid for climate, environmental protection and energy

ursday 27 January

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e Court of Justice issued a judgment in Zinātnes parks (C347/20) clarifying how to interpret the concepts of ‘subscribed share capital’ and ‘undertaking in diﬃculty’ under the General Block Exception Regulation.

ursday 27 January

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e European Commission formally adopted the new Guidelines on State aid for climate, environmental protection and energy, which aim to align State aid rules with the important EU energy and environmental objectives and targets.

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Commission clears acquisition of Kustomer by Meta (formerly Facebook), subject to commitments Friday 28 January

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AG Rantos adopts his Opinion on indirect discrimination on grounds of sex in decision determining amount of retirement pension

e European Commission approved the proposed acquisition of Kustomer, customer service and support customer relationship management so ware company, by Meta (formerly Facebook), subject to full compliance with commitments oﬀered by Meta.

Friday 28 January

AG Richard de la Tour: GDPR allows for higher protection of data protection oﬃcers under national law

AG Ćapeta: transfer of vouchers between company and employees not ‘taxable transactions’ under VAT Directive

Friday 28 January

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In Leistritz AG (C-534/20), Advocate General Richard de la Tour concluded that Article 38(3) of the GDPR does not preclude national legislation under which the employer of a data protection oﬃcer may dismiss her only for serious reasons, even if the reason for dismissal does not relate to the performance of the duties of the dismissed data protection oﬃcer.

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Advocate General Rantos concluded in BVAEB (C-405/20) that the principle of equal pay can be invoked without any limitation in time and that EU law does not preclude legislation that excludes increases in retirement pension beyond a certain amount, even if it aﬀects more men than women, provided that it is justi ed by objective factors unrelated to any discrimination on grounds of sex.

Friday 28 January

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Advocate General Ćapeta found in GE Aircra Engine Services Ltd (C-607/20), that unless all the relevant information concerning the right to a supply of goods or services is already known when a voucher is transferred from a taxable person to his or her staﬀ, that transfer does not constitute a taxable transaction within the meaning of Article 62 of the VAT Directive.

Commission adopts new energy statistics for 2022, further supporting the Green Deal Friday 28 January

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e European Commission adopted an encompassing amendment of the energy statistics regulation, in order to support even further the European Green Deal and provide for a credible and evidence-based transition towards a climate-neutral economy.

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Insights, Analyses & Op-Eds Paying Default Interest A er a Reduction of a Fine: No Way Out for the Commission by Jokin Beltrán de Lubiano

Court of Justice’s Grand Chamber in JY: Othering Europeans is OK by Dimitry Kochenov

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Analysis of the General Court’s judgement in Deutsche Telekom v Commission (T-610/19), in which the Court awarded Deutsche Telekom 1.8 million euros for the Commission’s failure to pay default interest rate of the competition ne the company had overpaid previously.

Op-Ed of the Court of Justice’s judgment in JY (C-118/20), in which it was found that all the situations where a renunciation of a previous Member State nationality is required before naturalising in the Member State of residence fall unquestionably within the scope of EU law, since the ‘fundamental status’ of EU citizenship is at stake.

e Commission’s Proposal for an Anti-Coercion Instrument: e Sky is the Limit

A New Episode in the Romanian Saga: e Primacy of EU Law Over National Constitutional Jurisprudence

by Bregt Natens and Sven De Knop

by Guido Bellenghi

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Op-Ed assessing the Commission’ proposal for an anticoercion instrument, which, according to the authors, contains far-reaching powers for the Commission to counteract perceived coercion with procedural rules that provide limited Member State control on how the Commission can use those powers.

Analysis of the Court’s of Justice judgment in Euro Box Promotion and Others, dealing with the application of certain decisions of the Romanian Constitutional Court and the prevention of fraud and corruption, as well interpreting the Cooperation and Veri cation Mechanism.

Member States cannot subject exemption from excise duty to paying for goods through non-cash means

‘Salami Slicing’ of Exploration Projects is not contrary to the Hydrocarbons Directive

by Ondřej Serdula

by Florian Stangl

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Analysis of the judgment delivered by the Court of Justice in MONO (C-326/20), concerning the conditions that the Member States are allowed to set for the exemption from excise duty of goods intended to be used in the context of diplomatic or consular relations.

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Analysis of the recent judgment in Regione Puglia (C110/20), in which the Court of Justice decided that spli ing a major exploration project into several smaller sub-projects in order to comply with the size-related thresholds set out in national law does not per se infringe the Hydrocarbons Directive.