Weekend Edition Nº90 by eulawlive

Nº90

FEBRUARY 19

2022

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RICARDO GARCÍA ANTÓN

THE MATURITY OF THE CIVIL SOCIETY IN TAX MATTERS: COMMENTS OF ON THE DIRECTIVE ON PUBLIC COUNTRY- BY-COUNTRY REPORTING DIRECTIVE

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Nº90 · FEBRUARY 19, 2022

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The Maturity of the Civil Society in Tax Matters: Comments of On the Directive on Public Country-by-Country Reporting Directive Ricardo García Antón

Addressing tax abuse by multinationals has become one of the top priorities of the states in the last twelve years. e economic downturn derived from the economic and nancial crisis in 2008-2010 urged the States to increase tax collection to face the signi cant deterioration of public nances. Whether everybody eﬀectively contributes to the public expenditure by paying taxes became a central issue in 2012. at year, the revelations of the con dential Luxembourg tax rulings derived from journalistic investigations in the Luxleaks scandal clearly showed that multinationals and skilled taxpayers were not paying the fair share of taxes. For the rst time in history, taxation was no longer an area reserved to tax-geeks, which scared the population due to its technicalities. e 2012 demonstrations against multinationals such as Starbucks in the United Kingdom exposed them to the civil society’s wrath. How much taxes should a multinational pay is thus a question subject to public scrutiny. In this contribution, I will present how the pressure towards a fair taxation of multinationals was translated into the OECD/G20 Base Erosion and Pro t Shi ing project (‘BEPS Project’, 2013-2015) (1), and particularly the Country-by-Country reporting (‘C-b-C’). Such reporting compelled multinationals to disclose their tax aﬀairs to their tax authorities. e demands of civil society and NGOs to make the C-b-C reporting available to the general public through the Internet are behind the recent approval of the Directive EU 2021/2101 (‘the Directive’) (2). In my view, such a step towards transparency is welcome, but there are still important improvements to make in the disclosure of information to the public. As I will conclude in this Long-Read, public C-b-C reporting enforces an idea of transparency, which clashes with the freedom to conduct business (trade secret). e current developments in international taxation urge us to rethink on the principle of transparency, and recalibrate the equation transparency versus privacy.

A global reaction towards base erosion and pro t shi ing practices e reaction against multinationals not paying their fair taxes triggered the adoption of the BEPS project in order to equip states with the necessary tools to put an end to tax abuse and ensure tax collection (3). De ning abuse in tax law is not an easy task. is is due to the linguistic, conceptual, and practical discrepancies around the i. Ricardo García Antón is Assistant Professor of European and International Tax Law at Tilburg University, Fiscal Institute Tilburg. 1. A good overview of the BEPS project and the actions can be found here. 2. Directive (EU) 2021/2101 of the European Parliament and of the Council of 24 November 2021 amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches, OJ 2021 L 429, p. 1. 3. According to the OECD Statistics, base erosion and pro t shi ing practices cost countries 100-240 billion USD in lost revenue annually, which is the equivalent to 4-10% of the global corporate income tax revenue.

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De ning abuse in tax law is not an easy task. is is due to the linguistic, conceptual, and practical discrepancies around the concepts of anti-avoidance and tax evasion which jeopardise a homogenous meaning of abuse

concepts of anti-avoidance and tax evasion, which jeopardise a homogenous meaning of abuse (4). In most tax systems, while tax evasion (fraud) is a criminal oﬀence punishable by nes or imprisonment, unacceptable tax avoidance involves the reduction of taxation by legal means rather than by fraud, non-disclosure or misrepresentation (5). e focus of the BEPS Project, which was divided in 15 actions, was to tackle tax avoidance, improve the coherence of international rules and ensure a more transparent tax environment. One of the core transversal features of the 15 BEPS Actions was to demand economic substance in the tax planning strategies of multinationals. BEPS Action 5 connected the access to tax bene ts linked to the exploitation of intangibles (i.e. patent box regime) with real expenditure in Research & Development. Another good example could be found in BEPS Actions 8-10, which require that taxable pro ts of a multinational group are allocated where proper assets, functions and bear risks are located (‘signi cant people functions’). e requirements of economic substance targeted aggressive tax planning strategies of multinationals using intermediate jurisdictions (i.e. Luxembourg, the Netherlands) to place shell company without economic substance.

4. On the conceptual and linguistic discrepancies on the concepts of anti-avoidance and tax evasion, there is abundant literature. See V. Uckmar, ‘General Report’, in IFA Cahiers, Tax Avoidance/Tax Evasion vol. 68a., 23 (IFA, 1983); M. Mössner, ‘Tax Avoidance Concepts and European Tax Education – Professors of Tax Law Hold First Meeting in Osnabrück’, (1999) 39 European Taxation 92; S. van Weeghel, ‘General Report’, (2010) 95A IFA Cahiers, Tax Treaties and Tax Avoidance: Application of Anti Avoidance Provisions 19; P. Piantavigna, ‘Tax Abuse and Aggressive Tax Planning in the BEPS Era: How EU Law and the OECD Are Establishing a Unifying Conceptual Framework in International Tax Law, despite Linguistic Discrepancies’, 2017 World Tax Journal (online edition) 9; C. Öner, ‘Is Tax Avoidance the eory of Everything in Tax Law? A Terminological Analysis of EU Legislation and Case Law’, 2019 27 EC Tax Review 96. 5. B. Arnold, ‘Protecting the Tax Base of Developing Countries through the use of General Anti-Avoidance Rules’, 2019 UN Nations Practical Portfolio 9.

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e country-by- country reporting (‘C-b-C’) Linked to this idea of economic substance and ght against sham arrangements, BEPS Action 13 required multinationals with annual consolidated group revenue equal to or exceeding EUR 750 million to provide a countryby country reporting (‘C-b-C’) for tax risk assessment purposes (6). C-b-C reporting compels multinationals to present a breakdown of every jurisdiction in which they operate where pro ts, taxes paid, and economic data (stated capital, main business activity, full time employees and tangible assets) are placed (7). e exchange of these reports among tax administrations is crucial to carry out transfer pricing risk assessment and monitor potential base erosion and pro t shi ing practices. Since 2018, and according to the OECD statistics, the enforcement of automatic exchanges of C-b-C reports has reached over 3000 bilateral exchange relationships as of October 2021 (8). In line with this so -law developments at the OECD level, the implementation of the C-b-C reporting and automatic exchange of reports in the EU took place quite early, through the amendment of the Administrative Cooperation Amendment (Directive 2011/16/EU) by Council Directive 2016/881/EU as regards mandatory automatic exchange of information in the eld of taxation (9). One may wonder whether C-b-C reporting is an eﬀective device to allow tax administrations to conduct proper tax risk assessments of multinationals. Important information is still missing in the reporting. Data related to patents, trademarks, intercompany debt and royalty payment is excluded (10). While the information contained in the C-b-C report only looks at tangible assets, our economy is digitalized and thus relies more on intangible assets. For example, patents and trademarks are key revenue drivers in multinationals and could be easily shi ed to low-tax jurisdictions. Placing excessive inter-company debts in the subsidiaries is one the most common strategies to erode taxable bases. Such base erosion and pro t shi ing strategies with intellectual property assets and intercompany debt could not be easily captured through C-b-C reporting, taking into account the number of workers, or the main economic activities performed per jurisdiction. Due to this lack of crucial information, some commentators labelled C-b-C reporting as a ‘quick and dirty’ high-level BEPS-risk assessment regarding tax planning of reporting multinationals (11).

A step forward: the long march towards public C-b-C reporting Despite the previous shortcomings in the information to be reported, the enforcement of C-b-C reporting and automatic exchange among tax authorities was highly celebrated as one of the major transparency achievements of the BEPS project. However, NGOs and civil society demanded a step further in ghting aggressive tax plan6. On the history of C-b-C proposals, see A. Cobham, P. Jansky and M. Meinzer, ‘A half-Century of Resistance to Corporate Disclose’, (2018) 25 Transnational Corporations, issue 3. 7. See this de nition in S. Picariello and V. Chand, ‘ e Use of Country-by-Country Reporting for Tax Risk Assessment: challenges and potential solutions’, (2020) International Tax Studies, issue 1, pp. 1-24. 8. On the agreement to exchange the reports, there are 91 jurisdictions which are members of the CbC Multilateral Competent Authority Agreement on the Exchange of Country-by-Country. See more information available here. 9. Council Directive (EU) 2016/881 of 25 May 2016 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the eld of taxation, OJ 2016 L 146, p. 8–21. 10. On this criticism to the information C-b-C reporting, see S. Picariello and V. Chand, supra note 6, p. 9. 11. M. Lagarden et al., ‘International - Country-by-Country Reporting Goes Public – Cui Bono?’, (2020) 27 International Transfer Pricing Journal, No. 2.

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ning strategies by multinationals and clearly advocated for a public C-b-C reporting. Not only tax administrations but also the general public should get precise information on where multinationals make their pro ts, where they pay their taxes and how much they pay. e information should not remain con dential between the tax administration and the taxpayer. However, neither the OECD, nor the industry were in favour of making the information publicly available.

Not only tax administrations but also the general public should get precise information on where multinationals make their pro ts, where they pay their taxes and how much they pay

Such a powerful claim was picked up by the European Commission, which launched on 12 April 2016 a proposal for a directive on public tax transparency rules for multinationals (the public C-b-C) (12). e proposal was framed under the Accounting Directive which required quali ed majority rule (13), instead of using the legal basis of tax directives, which require unanimity rule under Article 115 TFEU. Even though the proposal did not propose any tax harmonisation, simply aiming to establish nancial reporting obligations as regards income tax information, there was an important debate on whether the Accounting Directive was the suitable legal basis (14). e debate on the legal basis of the directive, coupled with the eﬀorts to reach consensus, delayed the adoption of the directive until last December 2021, with the enactment of Directive EU 2021/2101 (‘the Directive’) (15). e current Directive eventually amended the Accounting Directive.

No symmetry in the content of public C-b-C and C-b-C reporting in Action 13 BEPS e current public C-b-C reporting is not a novelty in the EU, as similar reporting obligations were introduced for the banking sector and the extractive and logging industry within the framework of the Accounting Directive (16). e Directive is grounded in the need to enhance corporate social responsibility, increase transparency and improve shareholders’ ability to properly evaluate the risks taken by undertakings. e Directive maintains the EUR 750 million threshold for each of the last two consecutive years to make the C-b-C reports available to the public. Medium-size and large EU branches and subsidiaries opened in the Union, when the ultimate parent undertaking is not governed by the law of a Member State, are also in-scope provided the consolidated nancial statements are above the EUR 750 million (Article 48b paragraph 4). In case that non-EU parent companies refuse to cooperate, the subsidiary or branch in the EU should make a statement indicating that the former did not make the information available. 12. See the EU Commission’s proposal here. 13. Directive 2013/34/EU, of 26 June 2013, on the annual nancial statements, consolidated nancial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC, OJ 2013 L 182, p. 19. 14. On this legal controversy, see the brie ng to the European Parliament. 15. Directive (EU) 2021/2101 of the European Parliament and of the Council of 24 November 2021 amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches, OJ 2021 L 429, p. 1. 16. Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, OJ 2013 L 176, p. 338.

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e information – more accurately presented in Article 48c of the Directive than in the 2016 proposal –, must be made accessible to the public, free of charge and in electronic reporting format. e content refers to a brief description and nature of the activities, identi cation of the parent company, lists of subsidiaries, employees, revenue, pro t/loss before tax and income tax paid per jurisdiction. In comparison with the dra ing of the 2016 proposal, the Directive establishes that the reporting will add a list of subsidiaries consolidated in the nancial accounts and established either in the EU or in a jurisdiction listed in the EU list of non-cooperative jurisdictions. Taking into consideration that only 8 countries currently form part of this list (American Samoa, Fiji, Guam, Palau, Panama, Samoa, Trinidad and Tobago, US Virgin Islands, Vanuatu), the use of other traditional low-tax jurisdictions as Cayman Islands or Bermuda, for example, will not be detected. Such referral to the EU list of non-cooperative jurisdictions is quite narrow and limits the eﬀectiveness of the public C-b-C report. No reference is either made to tangible/ xed assets (17). Neither will the information regarding non-EU jurisdictions be reported separately. While information must be separately presented for each Member States and jurisdictions included in the EU list of non-cooperative jurisdictions, the information regarding all other third jurisdictions will be aggregated, mixing for example developing countries with low-tax jurisdictions. is aggregation jeopardises the utility of the reporting to detect BEPS risks in the la er jurisdictions (18). e lack of symmetry between the information to be exchanged under the Directive and under Action 13 BEPS is a distinctive signal. ere is not yet political intention to give both reporting systems the same con17. See this criticism in Tax Justice Network Report. 18. Ibid.

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tent (19). While information regarding subsidiaries in Luxembourg and the Netherlands would be accessible to the public, the use of Cayman/Bermuda subsidiaries would instead remain opaque. e information available to the public in the Directive satis es perhaps the demands of the industry, which opposed this measure from the outset (20), but is still far from meeting the demands of NGOs and civil society. If the design of the C-b-C reporting template in Action 13 BEPS was already criticised, one could imagine that the current content to be disclosed in accordance to the Directive does not help much to detect base erosion and pro t shi ing schemes by multinationals.

e information available to the public in the Directive satis es perhaps the demands of the industry, which opposed this measure from the outset, but is still far from meeting the demands of NGOs and civil society

Transparency and the right to conduct business Due to the previous criticisms, the public C-b-C reporting laid down in the Directive leaves us a bi ersweet taste. What is the meaning of transparency? In his seminal work on transparency, Turina compares the regulatory transparency frameworks in international taxation and international nancial regulations (21). While in international taxation, taxpayers traditionally provide information to be scrutinised by tax authorities (reciprocal relationship), in the area of nancial regulations, transparency is expected of private parties both towards regulators as well as towards other market actors, and more generally civil society. A good example is the ‘Extractive Industries Transparency Initiative’ (‘EITI’) in which all stakeholders, from shareholders to governments and civil society, are entitled to monitor how extractive industry companies engage with the governments to prevent corruption. Turina argued that a reconciliation of both regulatory frameworks is currently taking

While in international taxation, taxpayers traditionally provide information to be scrutinised by tax authorities (reciprocal relationship), in the area of nancial regulations, transparency is expected of private parties both towards regulators as well as towards other market actors, and more generally civil society

19. On a critical assessment of the outcome of the new Directive, see EU shot at tax transparency ra les multinationals’ woodwork but fails to score - Tax Justice Network. 20. e strong disagreement in the industry may have justi ed not giving both reporting systems the same content (the one of BEPS Action 13 (second section of this paper) and the public C-b-C reporting of the Directive). Almost 90% of rms and industry associations agree that businesses would be disadvantaged on public disclosure of data and EU companies would lose competitiveness, impose costs and additional compliance requirements. See the summary of the responses to public consultation on public C-b-C. 21. A. Turina, ´Visible, ough Not Visible in Itself. Transparency at the Crossroads of International Financial Regulation and International Taxation´, (2016), 8 World Tax Journal, No. 3.

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e debate on whether public C-b-C reporting is desirable has been framed into an irresolvable dichotomy between transparency and the right/freedom of enterprises to conduct their business

place by advancing towards identifying transparency with the concepts of accessibility and accountability. In this shi towards a reconciliatory notion of transparency, public C-b-C reporting has a pivotal role. Such shi is not easy and faces strong resistance from the industry, which explains the weak compromises reached in the Directive. e debate on whether public C-b-C reporting is desirable has been framed into an irresolvable dichotomy between transparency and the right/freedom of enterprises to conduct their business. It is not the rst time that the right to conduct business con icts with other rights or values. For instance, in the area of public procurement, procedures for the award of public supply contracts, the Court of Justice has dealt with the dichotomy between the protection of the con dential information provided by a tenderer and the eﬀectiveness of the rights of defence of other tenderers in cases such as Varec or Klaipėdos) (22) In that case-law, the la er dichotomy is solved in favour of safeguarding con dentiality and business secrets. Under this manichaeist narrative, in both the areas of public procurement and of public C-b-C reporting, the freedom to conduct business prevails. With regard to C-b-C reporting, the argument is twofold presented. Firstly, the reporting would disclose strategic business information that could be used by other competitors and dramatically make the entrepreneurs lose competitiveness. Such argumentation pervaded into the reasoning of the French Conseil Constitutionnel, which declared the free access on internet of C-b-C reports of corporations laid down in paragraph I of article 137 Commerce Code not proportionate to preserve the constitutional freedom to conduct business (23). Secondly, albeit not always explicitly said, it could be argued that the general public is not knowledgeable enough to understand the information contained in the report, thus the risk of ‘naming and shaming’ would de nitely impact the reputation and competitiveness positions of multinationals.

22. See Case C-927/19, Klaipėdos, EU:C:2021:700 and the Analysis Piotr Bogdanowicz in EU law live. and Case C-450/06, Varec, EU:C:2008:91. 23. France: Conseil Constitutionnel, 2016-741 DC, 8 December 2016, paragraphs 100-104.

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In the dichotomy between transparency and the right to conduct business, it seems that the proportionality principle plays a relevant role. But proportionality should not be viewed as a one-size- ts-all reasoning. Indeed, proportionality is a speci c judicial reasoning to balance values that are equally, universally and un-controversially valid (24). Do both values, on one hand transparency, and on the other hand the freedom to conduct business, deserve the same level of protection? For the French Conseil Constitutionnel, the answer is clearly affirmative: the right to conduct business, which has been recognised, for example, in Article 16 of the Charter of Fundamental Rights, together with the right to keep trade secrets, prevails over transparency, and thus make public C-b-C reporting disproportionate. In my personal view, this assumption is awed and is the product of a neoliberal/individualistic approach. For the purpose of applying the proportionality principle, the right to con dentiality and trade secrets on the one hand, and the civil society’s right to get information on the tax affairs of multinationals (transparency), on the other, cannot be placed on the same footing. Bearing in mind that base erosion and pro t shi ing practices by multinationals are jeopardizing the achievement of global tax fairness, rising global inequality and poverty (25). In the eld of public procurement, the right of defence of other tenderers and the right to trade secrets are equal and comparable values, thereby enabling the adjudicator to make recourse to proportionality. In a nutshell, placing the freedom to conduct business (trade secret) and transparency on the same footing thwarts the implementation of a fully- edged public C-b-C reporting. Disclosing C-b-C data to the public, showing for example the use of low tax jurisdictions without economic substance and tax havens, increases accountability and puts immediate pressure on multinationals to stamp out their aggressive tax planning schemes. In tax ma ers, the civil society is not underaged anymore and deserves to know where and how much taxes multinationals pay. e judgment of the French Conseil Constitutionnel and the weakness of the Directive are clear examples that there is still a long way ahead to achieve an effective disclosure of tax information.

Disclosing C-b-C data to the public, showing for example the use of low tax jurisdictions without economic substance and tax havens, increases accountability and puts immediate pressure on multinationals to stamp out their aggressive tax planning schemes

24. On the meaning of proportionality, see T. Marzal, ‘From Hercules to Pareto: Of bathos, proportionality, and EU law’, (2017) 15 International Journal of Constitutional Law 621. T. Marzal, ‘La Cour de cassation à "l’âge de la balance" Analyse critique et comparative de la proportionnalité comme forme de raisonnement’, (2017) Revue trimestrielle de droit civil 789. 25. On the duty of assistance towards developing countries and enforcing truly cooperation to achieve more fairness among states, see A. Christians and L. van Apeldoorn, Cooperation in an Unjust World, (Oxford University Press, 2021).

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News Highlights 14 to 18 February 2022

Commission authorises house cricket to be marketed as food in EU market Monday 14 February

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e European Commission authorised the placing on the market of house crickets (Acheta domesticus) as novel food in the EU, becoming the third insect successfully approved for consumption.

Front Polisario challenges new EUMorocco Fisheries Agreement Monday 14 February

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Energy companies appeal General Court’s judgment upholding decision to investigate Spain’s support for coal power plants for breach of State aid rule Monday 14 February

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Naturgy Energy Group (C-698/21 P) and EDP España (C693/21 P) lodged two appeals before the Court of Justice against the General Court’s judgment that upheld the Commission’s decision to open an in-depth investigation into the environmental investment incentive granted by Spain to coalred power stations.

Polish Constitutional Court to issue parallel ruling on rule of law conditionality mechanism

Front Polisario, a national liberation group representing the interests of the Saharawi people challenged before the General Court the validity of the new EU-Morocco Fisheries Agreement.

Monday 14 February

Positions for traineeship available at the European Ombudsman’s Oﬃce

Court of Justice to assess compatibility of UEFA’s rule requiring a minimum number of home-grown players to compete in football games

Tuesday 15 February

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e European Ombudsman is seeking candidates for paid, one-year traineeships in case handling (up to 5 traineeships) and digital communication (1 traineeship) starting on 1 September 2022 either in Brussels or Strasbourg.

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e Polish Constitutional Court will deliver a judgment on 16 February 2022 in which it will examine the compliance with the Polish Constitution of Article 322 TFEU when used as a legal basis to adopt a nancial conditionality mechanism subject to the respect of the rule of law, as the EU legislature did by adopting Regulation 2020/2092.

Tuesday 15 February

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Oﬃcial publication was made of the request for a preliminary ruling in the case Royal Antwerp Football Club (C-680/21), concerning the compatibility of UEFA’s player regulation with EU competition and free movement laws.

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Italian Constitutional Court refers questions for a preliminary ruling on European Arrest Warrant

Commission updates data on the calculation of lump sums in infringement proceedings

Tuesday 15 February

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e Italian Constitutional Court referred two questions for a preliminary ruling to the Court of Justice concerning the interpretation of several provisions of the European Arrest Warrant Framework Decision.

Oﬃcial publication was made of a Communication from the European Commission (2022/C 74/02) that updates the data used to calculate lump sum and penalty payments to be proposed by the Commission to the Court of Justice in infringement proceedings.

ECtHR rules against automatic removal of right to vote for persons placed under guardianship

Court of Justice to rule on Polish legislation allowing to release judges from hearing cases

Tuesday 15 February

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e European Court of Human Rights ruled in Anatoliy Marinov v. Bulgaria that there had been a violation of the right to free elections due to automatic and indiscriminate removal of the applicant’s right to vote solely because he was placed under partial guardianship owing to psychiatric issues.

Two requests for a preliminary ruling were lodged by the Slupsk District Court concerning the compatibility of Polish legislation providing for the possibility of releasing judges from their obligation to hear cases.

Court of Justice upholds rule of law conditionality mechanism, dismisses Hungary and Poland’s actions

Joint EU Law Live – College of Europe Webinar on the Rule of Law Conditionality judgments

Wednesday 16 February

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e Court of Justice dismissed Poland’s and Hungary’s actions against the so-called rule of law conditionality mechanism under Regulation 2020/2092, which allows subjecting the receipt of EU funds to the respect by Member States of the principles of the rule of law (Cases C-156/21 and C157/21).

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On 24 February (16:00-18:00), EU Law Live and the College of Europe will host a panel discussion concerning the Rule of Law Conditionality in the wake of the Court of Justice’s judgments upholding Regulation 2020/2092.

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Court of Justice to rule on whether Belgium’s prohibition to use certain pesticides on crops falls within the scope of ‘technical regulation’ Wednesday 16 February

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Oﬃcial publication was made of the request for a preliminary ruling in case PHYTOFAR (C-658/21), concerning the scope of ‘technical regulation’ under Directive 2015/1535/EU and Member States’ obligation to communicate any such technical regulations to the Commission.

European Data Protection Supervisor Report: Pegasus spyware raises serious data privacy and protection concerns Wednesday 16 February

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e European Data Protection Supervisor (EDPS) published its preliminary remarks on the assessment of Pegasus spyware, revealing that it raises serious questions about the impact of modern spyware tools on the rights to privacy and data protection.

Commission publishes Recommendation on EU semiconductor toolbox ursday 17 February

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Oﬃcial publication was made of Commission Recommendation 2022/210, on a common Union toolbox to address semiconductor shortages and an EU mechanism for monitoring the semiconductor ecosystem.

Commission proposes a set of initiatives to strengthen eﬃciency and resilience of Europe’s defence sector Wednesday 16 February

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e European Commission presented a Communication containing a number of Commission-led initiatives aimed to tackle various challenges and threats in critical areas for defence and security in the EU.

Court of Justice to rule on balancing of interests in revocation of asylum status Wednesday 16 February

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In Bundesamt für Fremdenwesen und Asyl (C-663/21), the Court of Justice will hear a request for a preliminary ruling on the weighing up of interests by competent authorities when examining whether an asylum status can be revoked when a person constitutes a danger to the community.

EFTA Surveillance Authority approves Iceland’s regional aid development map ursday 17 February

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Oﬃcial publication was made of Commission Recommendation 2022/210, on a common Union toolbox to address semiconductor shortages and an EU mechanism for monitoring the semiconductor ecosystem.

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European Chief Prosecutor sends le er to Commission on Poland’s refusal to cooperate with EPPO ursday 17 February

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Commission publishes semi-annual report on the execution of NextGenerationEU funding operations Friday 18 February

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e European Chief Prosecutor addressed a le er to the European Commission in light of Recital 16 of the Rule of Law Conditionality Regulation (2020/2092) expressing concern over Poland’s refusal to cooperate with the European Public Prosecutor’s Oﬃce.

e European Commission published its semi-annual report on the execution of NextGenerationEU funding operations, comprising a period between June and December 2021. e report focuses on the process implemented to raise and disburse the funding.

Commission invites parties to submit comments on investigation into alleged unlawful Hungarian regional investment aid to Samsung

EU Fundamental Rights Agency’s report calls for eﬀective guardianship for unaccompanied children

Friday 18 February

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e European Commission is inviting interested parties to submit comments within one month on the investigation procedure under Article 108(2) TFEU regarding State aid case SA.48556 – Regional investment aid to Samsung SDI.

Friday 18 February

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e EU Agency for Fundamental Rights (F ) published a report on the guardianship systems for unaccompanied children in the EU. e report builds on earlier F research and suggests ideas to improve the diverse guardianship systems in the EU.

Legal Oﬃcer position available at ACER Friday 18 February

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e EU Agency for the Cooperation of Energy Regulators (ACER) is seeking candidates for the position of Legal Oﬃcer at its headquarters in Ljubljana (Slovenia).

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Insights, Analyses & Op-Eds Reconciling the eﬀective judicial protection of EU rights, procedural autonomy and national judicial politics: Randstad Italia

e Turów Mine Dispute and the Principle of Sincere Cooperation: Advocate General Pikamäe’s Opinion by Trajan Shipley

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by Giulia Gentile

Op-Ed assessing Advocate General Pikamäe’s Opinion on the rst environmental inter-State dispute between the Czech Republic and Poland concerning the Turów mine (C-121/21) and in particular, the scope of the principle of sincere cooperation.

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Analysis of the judgment delivered in Randstad Italia (C-497/20), concerning the question of whether national procedural rules precluding an appeal against a decision of a court of the last instance can be set aside in case the last instance court’s decision violates EU law.

e Court of Justice Dodges the Real Question in the Micula case: Can an Investment Arbitration Tribunal Grant State Aid?

Court of Justice rules on retroactivity of EU law and the eﬀects of political compromise reached on legislative acts (C-181/20 Vysočina Wind)

by Johannes Fahner

by Melanie Fink

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Fi h Op-Ed on the EU Law Live Symposium on the Micula judgment of the Court of Justice. e author focuses on the question of whether an arbitral tribunal can grant State aid at all, especially given the conditions of imputability and advantage inherent in the state aid notion of Article 107 TFEU.

Analysis of the Court of Justice’s judgment in Vysočina Wind (C-181/20) that clari ed under what circumstances may a provision of EU law have retroactive eﬀect and whether Member States incur obligations in the period between political agreement on and adoption of a directive.

e General Court sets the limits for the standing of undertakings not participating in the tendering procedure (Leonardo SpA)

e rise of geo-economics: saying A, meaning B and pursuing C?

by Javier Miranzo Diaz

by Najib Zamani

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Analysis of the recent judgment in Leonardo SpA (T-849/19), rejecting the standing of the appellant, clarifying the limits for undertakings not participating in the tendering procedure to challenge it, and recognising a wide margin for contracting authorities to adapt the speci cations of the contract based on previous experiences.

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Op-Ed assessing the case launched by the EU at the World Trade Organization against China as an example of the use of trade policy to pursue geopolitical interests, placed in the context of the increasing convergence of politics and economics.

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Micula: European Food for by Paschalis Paschalidis

A revolution on cookies and digital advertising? e Belgian DPA’s Decision regarding IAB’s TCF

ought

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Sixth Op-Ed on the EU Law Live Symposium on the Micula judgment of the Court of Justice, focusing on four aspects of the Court’s reasoning that provide food for further re ection. e author addresses the temporal application of State aid law, the scope of Achmea, the consent under the ICSID Convention, and the compatibility of extra-EU BITs with EU law.

by Tiago Sérgio Cabral

Op-Ed analysing the recent Belgian Data Protection Authority’s decision nding that IAB Europe’s developed Transparency and Consent Framework, which helps companies active in the advertising space to collect consent from users, was actually in breach of the GDPR.

Rule of Law Conditionality: a LongDesired Victory or a Modest Step Forward?: Hungary v Parliament and Council (C-156/21) and Poland v Parliament and Council (C-157/21)

State aid as a means to preclude priority dispatching and guaranteed access of fossil fuels to networks in the electricity market: C-179/20 Fondul Proprietatea by Lucila de Almeida

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by Anna Zemskova

Op-Ed on the Court of Justice’s judgment in Foundul Proprietatea (C-179/20), which assesses the compatibility with EU Law (Directive 2009/72) of the Romanian legislation that granted two State-owned thermoelectrical power plants privileged access to the national transmission system networks.

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Analysis of the Full Court judgments in cases Hungary v Parliament and Council (C-156/21) and Poland v Parliament and Council (C-157/21), whereby the Court of Justice has upheld the validity of the nancial Rule of Law conditionality mechanism, established by Regulation 2092/2020.

Library - Book Review

By Allan F. Tatham

omas Lie änder, Manuel Kellerbauer and Eugenia Dumitriu-Segnana

e UK-EU Withdrawal Agreement: A Commentary Against the background of a marked deterioration in relations between the EU and the UK, the reviewer considers the publication of a legal commentary on the 2019 Withdrawal Agreement to be most welcomed. Allan F. Tatham acknowledges throughout the review the overwhelming merit of the volume that helps to further the understanding of the new, complex legal reality brought about by entry into force of the Withdrawal Agreement.

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