Weekend Edition Nº89 by eulawlive

Nº89

FEBRUARY 12

2022

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THEODOROS G. ILIOPOULOS

SUPPORT SCHEMES FOR RENEWABLE ENERGY SOURCES IN THE EU

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Nº89 · FEBRUARY 12, 2022

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Support Schemes for Renewable Energy Sources in the EU Theodoros G. Iliopoulos

e need for promotion of renewable energy sources e promotion of renewable energy sources (‘RES’) is a central pillar of the EU energy policy, which foregrounds decarbonisation and the a ainment of an energy transition. A larger share of energy from renewable sources in the energy mix is crucial for mitigating climate change, for enhancing energy security in Europe –which is not as rich in conventional energy sources–, and for boosting economic growth, as new industries can and do evolve around the development of RES. However, the development of renewables is lagging behind the ideal level because they remain costly, especially the novel and more promising technologies. And, of course, their production is o en unstable and uncertain, as it is dependent on weather conditions. e need and the challenges for the a ainment of the energy transition have been even more eloquently shown recently, a er the COVID-19 outbreak upset the energy markets. Τhe various con nement measures and the overall deceleration of the economic activity in 2020 resulted in a decrease of energy demand and generation that mostly aﬀected fossil fuel industries. At the same time, the recession and the economic uncertainty put the brakes on investments in renewable energy projects. e market imbalance was further exacerbated and led to the very recent and still on-going energy crisis. In mid-/late-2021 energy demand quickly rose and even surpassed pre-COVID-19 levels, which – in conjunction with broader economic and geopolitical events – caused the prices to skyrocket. Within this framework, this Long Read examines the regulatory instruments for the promotion of RES, appraises the EU legal framework that determines their use and puts forward thoughts regarding its further development.

Support schemes for RES: What are they? In their eﬀorts to support the development and promotion of renewables, Member States have been resorting to the so-called support schemes for RES. is is a broad term, de ned by Article 2(5) of the recast Renewable Energy Directive 2018/2001 as referring to legal instruments that promote the use of RES by ‘reducing the cost i. eodoros G. Iliopoulos is a postdoctoral researcher in energy and environmental law at Hasselt University. Contact: theodoros.iliopoulos@uhasselt.be is contribution for EU Law Live summarises some elements of the author’s doctoral thesis, ‘ e Law of Support Schemes for Renewable Energy Sources: Towards a New Legal Framework in the EU’, conducted at Hasselt University under the supervision of prof. dr. Bernard Vanheusden and successfully defended on 29 October 2021.

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of that energy, increasing the price at which it can be sold, or increasing, by means of a renewable energy obligation or otherwise, the volume of such energy purchased’ (1). e most widespread, so-called primary, support schemes are direct price instruments and quantity instruments that assist in the generation of renewable energy over many years. On the one hand, under price instruments, authorities set a price for renewable energy and the markets respond by adjusting generation upwards. Such instruments are feed-in tariﬀs, i.e. long-terms contracts that oﬀer bene ciaries a purchase guarantee at a pre-determined xed price for the renewable energy they generate, and feed-in premiums, i.e. long-terms contracts that ensure add-on payments complement the market price for the renewable energy that is otherwise just normally traded on the market. In general, direct price instruments are simple and they entail less risk for investments, as a certain pro tability is guaranteed. But they are also less exible to market uctuations and they are in principle costlier for energy consumers to whom the costs are passed on. On the other hand, quantity instruments set down the minimum amount of generation of renewable energy and the price is determined by the market. A typical such instrument is the use of quota obligations matched with the use of tradeable green certi cates that serve as a proof and as a commodity. Renewable energy producers receive such certi cates and they can earn extra revenue by selling them to those who need to surrender an amount of certi cates to prove compliance with the quota obligation. Another support scheme is bidding, in which tenderers compete and claim a contract with the authority. e rationale is that competition will reveal the real cost requi-

1. Directive (EU) 2018/2001 of 11 December 2018 on the promotion of the use of energy from renewable sources, OJ 2018 L 328, p. 82.

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red for an investment. Bidding is in principle a quantity instrument, but it might be also seen as a hybrid one, in the sense that it is o en accompanied by the granting of a xed remuneration. Quantity instruments, and especially bidding, are more market-based and be er comply with the functioning of the market, but they are less a ractive to investors – especially the smaller ones or investors in less established technologies –, as they have a more complicated architecture, higher transaction costs and more risk –in the lack of any pro t guarantees– (2). Primary support schemes of both types –direct price and quantity instruments– are o en complemented by secondary instruments, that is, tax exemptions, tax reductions, tax refunds or other scal measures, like so loans or investment subsidies, which aim to incentivise investments in RES by granting support ex ante, at the early stages of a project’s development. However, a political economy analysis shows that generalised remarks about the need to a ain an energy transition, as self-evident as they may be, do not suffice to hold up a regulatory intervention in the form of support schemes. Indeed, the regulatory capitalism and social market economy doctrine that shape the EU’s political economy require that a public intervention in the market should only occur if one or more certain market failures are identi ed to afflict the market. e market failures that are pertinent to the eld of renewable energy sources are externalities – unintended negative effects of the use of conventional energy sources and positive effects of the development of RES that are not re ected in the market valuations –, barriers to entry, risk and market instability that disincentivise investments in RES, and the insufficient provision of a merit good, that is, clean energy. erefore, each type of market failure denotes a different problem and, since different types of support schemes have different strengths and weaknesses, an accurate identi cation of the market failure to be tackled is a prerequisite for a successful renewable energy support policy. Unfortunately, the relevant national and supranational laws currently in force turn a blind eye to political economy considerations, which, thus, only have a minimal impact on the design choices that Member States make. Nevertheless, a dili-

e regulatory capitalism and social market economy doctrine that shape the EU’s political economy require that a public intervention in the market should only occur if one or more certain market failures are identi ed to aﬄict the market

2. On the diﬀerent categories of support schemes see the seminal works: Pablo del Río and Pere Mir-Artigues, ‘Combinations of Support Instruments for Renewable Energy in Europe: A Review’, 40 Renewable and Sustainable Energy Reviews, 2014, pp. 287-295; Philippe Menanteau, Dominique Finon and Marie-Laure Lamy, ‘Prices versus quantities: choosing policies for promoting the development of renewable energy’, 31 Energy Policy, 2003, pp. 799-812; Reinhard Hass et al., ‘A Historical Review of Promotion Strategies for Electricity from Renewable Energy Sources in EU countries’ 15 Renewable and Sustainable Energy Reviews, 2001, pp. 1003-1034.

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gent market failure analysis and a scrutiny of the capability of the diﬀerent support schemes to address the identied problem should form an integral part of a structured pre-enactment phase, so that renewable energy support policies become more (cost-)eﬀective and sustainable (3).

Support schemes for RES in practice: successes, failures and legal challenges e use of support schemes is not a novelty in itself. eir deployment goes back for decades, and they have been the spearhead of the Member States’ efforts to increase the share of renewables in their energy mix. ese efforts were strongly intensi ed by the enactment of Renewable Energy Directive 2009/28 that set down national mandatory targets for renewable energy shares (4). In responding to the obligations imposed on them, Member States resorted to ambitious support schemes (mostly direct price support schemes) that would be a ractive enough to result in a signi cant in ux of investments and in a rapid increase of the share of RES. Such aggressive renewable energy support policies have arguably delivered positive results. e share of RES in the EU (28 countries) increased by more than 50% in one decade, from 12.61% in 2009 to e support schemes used so far 18.87% in 2019 (5). However, the support schemes have not been an u er success used so far have not been an u er success story. Indeed, Member States have proven unable to acstory. Indeed, Member States have tually fully control the effects of their support regimes. On the one hand, the fact that many investors proven unable to actually fully rushed to bene t from the generous schemes offecontrol the effects of their red did boost the development of RES, but on the other hand it resulted in overinvestment and in oversupport regimes production of electricity that ended up quite problematic. While a large production of energy, in conjunction with the reduced energy demand in the mid-2010s, would normally make the prices drop, the bene ciaries were overcompensated as they still received the pre-determined xed prices and bonuses. is in exibility to the market signals resulted in overly high costs being passed on to consumers through surcharges for the support regimes to be sustained. But since the consumers and taxpayers were of course unable to continually nance the support regimes and the RES projects, a plethora of direct price support schemes collapsed and the guarantees granted to the bene ciaries were reversed.

3. See more on eodoros G. Iliopoulos, ‘ e Purposefulness And Serviceability Of Renewable Energy Support Schemes In View Of e COVID-19 Crisis’ in Hope Ashiabor, Janet E. Milne and Mikael Skou Andersen (Ed.), Environmental Taxation in the Pandemic Era, Edward Elgar, 2021, pp. 214-227. 4. Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, OJ 2009 L 140, p. 16. 5. e statistics can be consulted here.

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Similar regulatory failures also occurred with zealous regimes of quotas and certi cates because the overproduction of energy caused a mismatch between the supply and demand for green certi cates, which made trading on certi cates markets not pro table. Various subsequent regulatory interventions that Member States tried, e.g. imposing a certi cates purchase obligation at xed prices on national energy authorities, also proved unviable in the long-term and only resulted in higher energy bills for consumers on whom the extra costs were being passed on (6). In the end, RES in practically all Member States collapsed and had to be reformed. is was to the detriment of the consumers and the taxpayers who were called on to cover the extra costs, but also to the detriment of the investors who would see moratoria, cutbacks and other abrupt measures interfering with the investment plans and threatening the investments. Investors have so far unsuccessfully sought a compensation in such cases, on the basis of general principles of EU law, of the Charter of Fundamental Rights, or of the Energy Charter Treaty. is legal and investment uncertainty and lack of trust harmed the investment environment in general and caused a clear slowdown in the energy transition. Indeed, the annual increase of the share of RES notably dropped a er 2014, and it only recovered to the previous levels in 2018/2019; but the outbreak of the multifaceted COVID-19 crisis might have already triggered another slowdown of the pace of RES growth. At the same time, the EU lacked the mechanisms to impact on the national renewable energy support regimes. e arsenal of the EU legal order contained only general primary law rules and support-scheme-speci c provisions were for the rst time enacted in December 2018 with the Renewable Energy Directive 2018/2001. 6. On this see also eodoros Iliopoulos, ‘Finding the spearhead of the EU low-carbon energy transition’ in Marlon Boeve et al. (Ed.), Environmental Law for Transitions to Sustainability, Intersentia, 2021, pp. 129-146.

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e supranational renewable energy support law: where we are currently standing In the absence of support-scheme-speci c provisions in secondary law, it is EU primary law that has been impacting on national support policies for RES, and especially State aid law. State aid law allows the EU legal order to exercise a certain coercive power on national support policies, as the Commission has a wide competence to assess the compatibility with the internal market of support schemes that constitute State aid and to approve their implementation. is has also given rise to disputes between Member States and the Commission regarding the correct or erroneous characterisation of diﬀerent support schemes as State aid. is has proven a particularly complex legal issue, and in spite of a notable number of cases before the Court of Justice, it is still very diﬃcult to decode the legal doctrine and safely predict what the Court will decide in such disputes in the future (7).

In the absence of support-schemespeci c provisions in secondary law, it is EU primary law that has been impacting on national support policies for RES, and especially State aid law

Regarding the support schemes that constitute State aid, their legality assessment is conducted on the basis of the rules of a General Block Exemption Regulation (8), but mostly on the conditions of the Energy and Environment State Aid Guidelines that re ect and promote the Commission’s preferences and priorities on the support-schemes design. ese Guidelines were adopted in 2014 and were to last until 2020 (9). In the end, a twoyear prolongation was granted, and the new ‘Guidelines on State Aid for Climate, Environmental Protection and Energy’ were approved in December 2021 and formally adopted in January 2022 (10). In general, a broad belief in technology-neutral competitive bidding procedures and premiums can be perceived, while technology-speci c bidding, no bidding and feed-in tariﬀs are only exceptionally accepted. It is also noteworthy that the rules and conditions are more elaborate for the sector of electricity, but less developed for heating, cooling and transport. e Guidelines also refer to compliance with the law of the free movement of goods as a compatibility condition. In this way, the Commission leverages its competences in the eld of State

7. See for example the diﬀerent approaches in Judgment of the Court of Justice of 15 May 2019, Achema and Others (C-706/17, EU:C:2019:407); Judgment of the Court of Justice of 28 March 2019, Germany v Commission (Case C-405/16 P, EU:C:2019:268); Judgment of the Court of Justice of 13 September 2017, ENEA (C-329/15, EU:C:2017:671); Judgment of the Court of Justice of 19 December 2013, Vent De Colère and Others (C-262/12, ECLI:EU:C:2013:851). 8. Commission Regulation No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty, OJ 2014, L 156, p. 1. 9. Guidelines of 28 June 2014 on State aid for environmental protection and energy 2014-2020, OJ 2014, C 200, p. 1. 10. Annex of 21 December 2021 to the Communication to the Commission on the Approval of the content of a dra for a Communication from the Commission on the Guidelines on State aid for climate, environmental protection and energy 2022, C(2021) 9817 nal.

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aid to widen the scope of its assessment. However, the practicality of such ‘side-assessments’ can be doubted a er the recent judgment in Case T-300/19 (11), which declared that the Commission’s practice is not binding on the Court of Justice and annulled the Commission’s decision on the compatibility of a Lithuanian support scheme due to an incomplete and insufficient assessment that inter alia related to the legal area of the free movement of goods. e Guidelines’ design options were affirmed by the recast Renewable Energy Directive 2018/2001, which for the rst time introduced support-scheme-speci c provisions in EU secondary law. Directive’s Article 4 adopts a principle-based approach and requires market-based and market-responsive support schemes that do not unnecessarily distort the markets. e principles are not de ned by the law, but it seems that technology-neutral bidding procedures and market premiums are regarded as in general compliant with them, while feed-in tariffs and granting of support without bidding or a er technology-speci c bidding are only exceptionally accepted (12).

While the legal framework currently in force is the fruit of a reform that took place in 2018 and 2020, in view (mostly) of the climate change emergency and the pandemic, the EU is already planning a new round of reforms

e Renewable Energy Directive 2018/2001 also introduces a clear requirement that support schemes are not revised in a way that negatively aﬀects the rights they confer and that undermines the economic viability of projects that bene t from support. e belief in bidding is further aﬃrmed by Commission Implementing Regulation 2020/1294 (13) that created the Union Financing Mechanism for renewable energy projects. With this mechanism (that has not been put into practice yet) the EU will work together with Member States to organise bidding procedures and fund the winning projects. However, this belief should not lead to underestimate problems that o en accompany bidding procedures, such as the so-called ‘winner’s curse’, that is, the low realisation rate of the winning projects. EU law is currently only limitedly dealing with such issues. Moreover, the legal framework does not contain elaborate rules on the exact design of support schemes (especially when it comes to heating and cooling or transport), while it is clearly silent on the use of quota obligations and on less conventional support schemes, such as power purchase agreements or schemes for self-consumption and energy communities (the promotion of which constitutes a policy priority). 11. Judgment of the Court of Justice of 14 April 2021, Achema and Lifosa v Commission (T-300/19, EU:T:2021:191). 12. eodoros Iliopoulos, ‘Price support schemes in the service of the EU’s low-carbon energy transition’ in eodoros Zachariadis, Janet E. Milne, Mikael Skou Andersen and Hope Ashiabor (Ed.), Economic Instruments for a Low-carbon Future, Edward Elgar, 2020, pp. 2-15. 13. Commission Implementing Regulation (EU) 2020/1294 of 15 September 2020 on the Union renewable energy nancing mechanism, OJ 2020 L 303, p. 1.

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Considerations for a reform While the legal framework currently in force is the fruit of a reform that took place in 2018 and 2020, in view (mostly) of the climate change emergency and the pandemic, the EU is already planning a new round of reforms. Accordingly, the Green Deal and the Fit for 55 Packages have propounded more ambitious climate and energy targets, and at the same they have resulted in re ned and more speci c policy priorities, such as the deployment of the high oﬀshore energy potential. is provides a good opportunity for a reform that will clarify key concepts, will elaborate on support schemes’ selection process and design, and will widen the scope of the Renewable Energy Directive. e law should be equipped with the tools to adequately a end to unforeseen problems and to live up to modern challenges, such as the integration of RES in a well-functioning internal electricity market, the enhancement of energy security and the confrontation of energy poverty or the proper a ainment of the energy transition together with the digital transformation. Moreover, EU renewable energy support law should become more homogeneous, with the Renewable Energy Directive being the main instrument and the State aid assessment going to the background. It is also interesting to follow the application of the Union Financing Mechanism for RES that, seen as an embryonic supranational support scheme, can accelerate europeanisation in the area. In short, the planned reform in the area of renewable energy law provides a unique opportunity for a diligent intervention that will pave the way for the accomplishment of the energy transition and the a ainment of the objectives for 2030.

EU renewable energy support law should become more homogeneous, with the Renewable Energy Directive being the main instrument and the State aid assessment going to the background

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News Highlights 7 to 11 February 2022

Court of Justice to rule on compatibility of ope legis loss of citizenship with Article 20 TFEU Monday 7 February

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In X v Udlændinge- og Integrationsministeriet (C-689/21), the Court of Justice will rule on the compatibility of Article 20 TFEU, together with Article 7 of the Charter, with Danish legislation providing for the loss of citizenship by operation of the law.

ESAs Joint Report on actions to ensure EU’s nancial framework remains tfor-purpose in the digital age Monday 31 January

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Court of Justice to rule on right to nonmaterial damage compensation under GDPR when documents with personal data are disclosed accidentally Monday 7 February

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Oﬃcial publication was made of the request for a preliminary ruling in Saturn Electro (C-687/21), concerning the conditions to invoke the right to compensation for non-material damage under Article 82 of the GDPR when personal data is accidentally disclosed to an unauthorised third party.

Commission publishes notice on 2022 European standardisation programme intended to ensure EU products are safe, green and competitive

e three European Supervisory Authorities published a Joint Report in response to the European Commission’s Call for Advice on Digital Finance where it assesses the risks and opportunities posed by digitalisation in nance.

Tuesday 8 February

Eurogroup President to present proposal for the completion of Banking Union

Ombudsman: no maladministration in Commission’s non-invitation to working group on combating antisemitism

Tuesday 8 February

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e Eurogroup President, Irish Finance Minister Paschal Donohoe, con rmed that he will present a proposal for a work plan for the completion of the Banking Union.

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e European Commission published in the Oﬃcial Journal Notice 2022/C 66/01 that identi es the European standards and European standardisation deliverables that the Commission intends to request for 2022, together with speci c objectives and policies.

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e European Ombudsman found no maladministration in the Commission’s decision not to invite an organisation representing European Jewish peace groups to participate in a working group on combating antisemitism (case 2146/2020/TM).

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Commission extends equivalence for UK central counterparties and launches consultation on ways to expand central clearing activities

Chips Act aimed to secure EU’s supply and technological leadership in semiconductor sector presented by Commission

Tuesday 8 February

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e European Commission adopted a decision to extend equivalence for UK central counterparties (CCPs) until 30 June 2025 and launched a targeted public consultation and a call for evidence on ways to expand central clearing activities in the EU and improve the a ractiveness of EU CCPs.

e European Commission proposed the European Chips Act – a comprehensive set of measures to confront semiconductor shortages and strengthen Europe’s technological leadership in semiconductor technologies and applications.

ECtHR grants interim measures precluding further decision from Polish Disciplinary Chamber

Documents adopted at EDPB’s January and February Plenaries

Wednesday 9 February

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e European Court of Human Rights granted interim measures in Wróbel v. Poland, requesting the Polish Government to ensure that no decision on the immunity of the applicant, a Supreme Court judge, is taken by the Disciplinary Chamber of said court.

Court of Justice to rule on compatibility of diﬀerent forms of calculation of inheritance tax with free movement of capital Wednesday 9 February

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In BA v Finanzamt X (C-670/21), the Court of Justice will rule on the compatibility of national legislation on the levying of inheritance tax with Treaty provisions on the free movement of capital.

Wednesday 9 February

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At the Plenary sessions held in January and February, the European Data Protection Board adopted (i) Guidelines on Right of Access; (ii) Le er on cookie consent; and (iii) Opinion 1/2022 on the dra decision of the Luxembourg Supervisory Authority regarding the GDPR – CARPA certi cation criteria.

General Court annuls Commission’s decision rejecting to investigate Polish PKP Cargo over Commission’s failure to assess rule of law de ciencies in Poland Wednesday 9 February

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e General Court in Sped-Pro v Commission (T-791/19) annulled the Commission’s decision rejecting Sped-Pro’s complaint to open an investigation into PKP Cargo on the grounds that the Commission failed to examine the impact on the applicant’s procedural rights stemming from the systemic rule of law de ciencies in Poland.

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Commission requests Portugal and Sweden to urgently put EU rules on whistleblowers protection into eﬀect

GEA Group’s action against competition ne imposed on it is dismissed by General Court

Wednesday 9 February

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Amongst the February package of infringement procedure actions, the European Commission has sent a le er of formal notice to Portugal and Sweden as a result of their delayed entry into force of national measures transposing the Whistleblower Protection Directive.

In GEA Group v Commission (T-195/19), the General Court dismissed the action to annul the Commission decision rejecting to repay GEA Group the ne it paid for infringing competition rules in epoxidised soybean oil and esters sector under the 2009 Commission’s decision.

Commission refers UK to Court of Justice over judgment enforcing Micula arbitral award

Position available: Senior Legal Oﬃcer at the European Chief Prosecutor’s Oﬃce

Wednesday 9 February

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ursday 10 February

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e European Commission referred the United Kingdom to the Court of Justice over a judgment of its Supreme Court of 19 February 2020, which allowed enforcement of an arbitral award in the Micula saga, ordering Romania to pay compensation to investors.

e European Public Prosecutor’s Oﬃce is seeking candidates for the position of Senior Legal Oﬃcer at its headquarters in Luxembourg. e deadline for applications is 22 February 2022.

Vacancy for Professorship position at University Paris I Panthéon-Sorbonne

Court of Justice: Employment Equality Directive applies to trainees with disabilities and they can bene t from reassignment to another post

ursday 10 February

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e University Paris I Panthéon-Sorbonne is looking to recruit a Professor of Public International Law and Regional Law to join the Sorbonne Law School (Paris). Applications can be submi ed from 24 February 2022.

ursday 10 February

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e Court of Justice ruled in HR Rail (C-485/20) that a worker doing a traineeship who is declared incapable of performing essential work duties due to a disability can bene t from reassignment to another post for which he or she is competent, capable and available, unless that measure imposes a disproportionate burden on the employer.

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Ombudsman closes inquiry on EBA’s access refusal to its Board of Supervisors vote on alleged breach of EU law by national supervisory authorities ursday 10 February

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Period of residence required to determine courts’ jurisdiction in divorce ma ers may legitimately vary according to applicant’s nationality ursday 10 February

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e European Ombudsman delivered her decision in case 615/2021/TE, closing an inquiry into the refusal by the European Banking Authority to grant public access to the voting records of its Board of Supervisors on two dra Breach of Union Law recommendations.

e Court of Justice issued a judgment in OE (C-522/20), nding that the period of residence required in order for the national courts to exercise jurisdiction in a divorce case may legitimately vary according to the nationality of the applicant and is not discriminatory.

Preliminary ruling request on customs reporting of excess in quantity by consignee

Court of Justice clari es scope of input tax deduction under Article 167 of VAT Directive

ursday 10 February

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ursday 10 February

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In SC Zes Zollner Electronic SR (C-640/21), the Court of Justice will rule on whether Article 173 or 174 of the Union Customs Code applies where the consignee of the goods reports a quantity in excess of that stated in the original customs declaration.

In Grundstücksgemeinscha Kollaustraße 136 (C-9/20), the Court of Justice clari ed the precise moment when a taxable person may deduct input VAT in respect of rental services supplied by a taxable person who uses cash accounting for VAT purposes.

Five-year limitation period for oﬀences concerning underpaid posted workers is valid under EU law, Court of Justice rules

EU approves new rules to ensure access to biological plant protection products

ursday 10 February

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e Court of Justice ruled in LM (C-219/20) that Article 5 of the Posted Workers Directive, together with Article 47 of the Charter and the principle of good administration, allow for national legislation that provides for a ve-year limitation in respect of breaches of obligations relating to the remuneration of posted workers.

ursday 10 February

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Member States approved new rules to facilitate the approval of micro-organisms for use as active substances in plant protection products, as part of the EU’s transition to sustainable food systems and the work to reduce the use of chemical pesticides under the Farm to Fork Strategy.

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ECtHR: migrant smuggler’s conviction based on witness statements not examined at trial is unfair

EFTA Surveillance Authority adopts Guidelines on State aid for climate, environmental protection and energy

Friday 11 February

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e European Court of Human Rights ruled in Al Alo v. Slovakia that Slovakia violated the right to a fair trial by denying, without suﬃcient justi cation, the applicant the possibility to examine witnesses whose evidence had carried signi cant weight in his migrant struggling conviction.

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e EFTA Surveillance Authority formally adopted revised Guidelines on state aid for Climate, Environmental Protection and Energy (CEEAG), which started being applicable from 9 February 2022 onwards.

ECB: Capital and leverage relief for banks will not be further extended to return to normal banking supervision conditions Friday 11 February

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e European Central Bank concluded that banks are once again expected to operate above Pillar 2 Guidance from 1 January 2023 and reinclude central bank exposures in leverage ratio from 1 April 2022.

Insights, Analyses & Op-Eds Who watches the watchers? Judicial Disciplinary Proceedings in Hungary and Poland before the Court of Justice

Court recalls the Commission’s broad discretion in conducting anti-dumping investigations

by Marcin J. Menkes and Dániel Dózsa

by Jin Woo Kim

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Analysis of the Court of Justice’s judgment in Hubei Xinyegang Special Tube (C-891/19 P) in which the Court recalled the European Commission’s broad discretion in conducting antidumping investigations and annulled the General Court’s ruling, which had found that the Commission had violated the EU Basic AD Regulation.

Op-Ed assessing two judgments of the Court of Justice concerning disciplinary proceedings in the judiciary in Poland and Hungary in light of a broader controversy regarding the rule of law in both countries.

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AG Pitruzzella issues Opinion in favour of the PNR Directive compatibility with the Charter, despite its admi edly intrusive nature (Ligue des droits humains, C-817/19) by Plixavra Vogiatzoglou

e substitution of the insolvent winning contractor: Should the successor take it all? by Sarah Schoenmaekers

Analysis of the Court of Justice’s ruling in Advania Sverige and Kammarkollegiet (C-461/20) in which it held that insolvency of a contractor allows for succession into its position in a public framework agreement without there being a need to open a new procurement procedure under the Public Procurement Directive.

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Analysis of Advocate General’s Pitruzzella Opinion in Ligue des droits humains (C-817/19), concerning the compatibility between the interferences of the PNR Directive with the rights to privacy and to data protection.

Judgment of the Court of Justice in Commission v European Food and Others (C-638/19 P): e Micula saga continues… and the possible granting of State aid through arbitration awards comes under closer scrutiny

Approximating the rights of long-term resident third country nationals and EU citizens (Case C-432/20 Z.K. v Landeshauptmann Wien) by Stefan Salomon

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Analysis of the Court of Justice’s judgment in Z.K. v Landeshauptmann Wien concerning the criteria of loss of a third country national’s long-term residence status under Directive 2003/109 and whether a few days of mere physical presence during 12 months in the territory of the Union would be suﬃcient to maintain the long-term residence status.

by Juan Jorge Piernas López

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ird Op-Ed on the EU Law Live Symposium on the Micula judgment of the Court of Justice, focusing on the main issues related to State aid control and clari cation of the time when State aid must be considered to have been granted, as well as ma ers concerning investment law.

Se ing the boundaries between the General Data Protection Regulation, the Law Enforcement Directive and the PNR Directive. e other important question tackled by Advocate General Pitruzzella in Opinion in Case C817/19, Ligue des droits humains by Laura Drechsler

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When regimes collide: Micula – and the fragmentation of the international legal system by Holger Hestermeyer

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Fourth Op-Ed on the EU Law Live Symposium on the Micula judgment of the Court of Justice. e author recounts the story of Micula as an example of a con ict between EU law and international investment law and illustrates the limits of the techniques we have to resolve such con icts.

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Op-Ed on Advocate General’s Pitruzella Opinion in Ligue des droits humains, focusing on the Court’s assessment of the delineation of the scope of application between the GDPR, the Law Enforcement Directive and the PNR Directive.

Nº89 · FEBRUARY 12, 2022

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Library - Book Review

By Daniele Gallo READ ON EU LAW LIVE

Jasper Krommendijk National Courts and Preliminary References to the Court of Justice A review of a book that sheds light on a (relatively) neglected facet of Article 267 TFEU, that is the role of national judges in both triggering the intervention of the ECJ and enforcing the preliminary rulings delivered by the ECJ. e reviewer welcomes the book since it brings originality to the study of the national courts’ a itude towards Article 267 TFEU which, according to him, comes at the right time.