Weekend Edition Nº93 by eulawlive

Nº93

MARCH 11

2022

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LENA HORNKOHL AND WALTER BRUNO

ENTROPY IN DIFFERING CONSTITUTIONAL TRADITIONS? STANDING IN CLIMATE ACTIONS ACROSS THE EU BEFORE THE COURT OF JUSTICE AND NATIONAL COURTS

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Nº93 · MARCH 11, 2022

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Entropy In Diﬀering Constitutional Traditions? Standing In Climate Actions Across the EU Before the Court of Justice and National Courts Lena Hornkohl and Walter Bruno

Introduction Climate actions have been popping up across the EU (1) and are increasingly nding a place in the public discourse against the backdrop of the looming climate catastrophe. What are climate actions, you might ask yourself? In such actions, either individuals particularly affected by climate change or environmental interest groups seek the annulment of legislative acts that, in their opinion, are not far-reaching enough and/or complain about the government's omissions concerning measures targeting climate change. In the European Union, few of them have been successful and led to actual changes; however, most cases have been dismissed. Before a court can assess if a law has violated climate standards or a government has failed to take protective measures, an action must be admissible. In particular, claimants must have standing to bring an action. In today's European legal landscape, most cases fail to overcome this hurdle, so courts have rarely had to deal with substantive climate standards. e barriers for environmental interest groups are typically very high, as standing for such representative actions is rather exceptional. Individuals also have a hard time. ey typically have to demonstrate a direct relationship between the legal act or state omission and their situation. When it comes to standing in climate actions, especially the Court of Justice sets a bad example with its almost insurmountable approach to standing for direct actions. Several Member States equally maintain a burdensome de facto approach, which entails that a claimant must be personally and seriously affected by the law or omission at hand. Other Member States are more lenient and maintain a de jure approach, which means that the applicant's subjective right or legally protected interest must be affected (2). Different approaches to climate litigation against states show different opportunities to challenge (insufficient) climate measures under constitutional, civil and administrative procedural law. Comparing these three different approaches to judicial review, in this Long Read, we will draw a rst picture of the constitutional traditions for standing across the EU in order to question the Court of Justice established case law.

i. Dr. Lena Hornkohl, LL.M. College of Europe, is a Senior Research Fellow and Walter Bruno, LL.M. College of Europe, a Research Fellow at the Department for European and Comparative Procedural Law at the Max Planck Institute Luxembourg. 1. For an overview, see here. 2. See on the diﬀerence between de facto and de jure: Mariolina Eliantonio et al., Standing up for Your Right(s) in Europe: A Comparative Study on Legal Standing (Locus Standi) before the EU and Member States’ Courts, European Parliament, 2012, pp. 74–81.

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Standing in direct actions at the Court of Justice for individuals or interest groups has always been a problem, also beyond climate actions. e highest European court follows a rigorous interpretation of the ‘direct and individual concern’-criteria of Article 263(4) TFEU

e Court of Justice: insurmountable obstacles? Standing in direct actions at the Court of Justice for individuals or interest groups has always been a problem, also beyond climate actions. e highest European court follows a rigorous interpretation of the ‘direct and individual concern’-criteria of Article 263(4) TFEU. Notably, the infamous Plaumann-formula sets high standards for individual concern as the legal act in question must affect claimants ‘by reason of certain a ributes that are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the addressee.' (3) Academia and claimants have challenged the Plaumann formula time and again, criticising that it disables access to justice and effective judicial protection (4). Yet, the Court of Justice's view seems to be set in stone. In climate actions, claimants can hardly ful l this narrow concept of standing. Recent climate cases at the Court of Justice, such as Sabo (5) or Carvalho (6) have shown that individuals must demonstrate that climate change affects them differently compared to other individuals. However, climate change effects, such as sea-level rising, are general and typically affect everyone. is leads to the paradoxical situation: since more people are affected by climate change, and the harm is more serious, corresponding EU legal acts are unsuitable for judicial review 3. Judgment of the Court of Justice of 15 July 1963, Plaumann (25/62, EU:C:1963:17). 4. See, for example, Magdalena Kucko, ‘ e Status of Natural or Legal Persons According to the Annulment Procedure Post-Lisbon’, 2 LSE Law Review 2017, pp. 101-119. 5. Judgment of the Court of Justice of 14 January 2021, Peter Sabo and others (C-297/20 P, EU:C:2021:24). 6. Judgment of the Court of Justice of 25 March 2021, Armando Carvalho and others (C-565/19 P, EU:C:2021:252).

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under Plaumann. Even environmental interest organisations, which could bundle such combined interests, either must be affected in their own interest as an association, or their members must be individually affected in the sense of Plaumann (7). is narrow view of the Court of Justice is questionable as other legal remedies against insufficient EU climate laws are unavailable, costly or timely. is is particularly problematic with climate change that demands quick action now to avoid irreversible effects in the future. As the mentioned cases have shown, effectiveness arguments do not persuade the Court of Justice (8). Apparently, effet utile is only a valid argument when se ing aside inefficient Member States procedural rules – standard case law at the highest European court – not when legal remedies at the Court of Justice do not seem to grant effective judicial protection. Not adapting Plaumann, in general, is one thing: the Court of Justice does not want to open the oodgates. It is another thing not to adapt Plaumann speci cally for climate actions. Article 9(3) of the Aarhus Convention obliges the EU to give members of the public 'access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.' Plaumann certainly does not meet the criteria of the Convention (9). Yet, the mentioned recent case law has shown that the Court of Justice is not receptive to such arguments. Moreover, although the recent amendment to the EU Aarhus Regulation (10) (touching upon the transposition of Article 9(3) of the Convention) expanded the access to administrative review, the resulting text still provokes criticism by stakeholders (11).

In climate actions, claimants can hardly ful l this narrow concept of standing… is leads to the paradoxical situation: since more people are aﬀected by climate change, and the harm is more serious, corresponding EU legal acts are unsuitable for judicial review under Plaumann

Not adapting Plaumann, in general, is one thing: the Court of Justice does not want to open the oodgates. It is another thing not to adapt Plaumann speci cally for climate actions

7. Court of Justice, Armando Carvalho and others, para 85. 8. Court of Justice, Armando Carvalho and others, para 78. 9. Aarhus Convention Compliance Commi ee Report of 17 March 2017, para 21. 10. Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 amending Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Ma ers to Community Institutions and bodies [2021] OJ L356/1. 11. Giulia Claudia Leonelli, ‘Access to the EU Courts in Environmental and Public Health Cases and the Reform of the Aarhus Regulation: Systemic Vision, Pragmatism and a Happy Ending’, 40 Yearbook of European Law 2021, pp. 230-264.

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ere is another card le to play: Article 263(4) TFEU could be interpreted in the light of the constitutional traditions of the EU Member States, under Article 6(3) TEU, which demands to develop EU constitutional principles on the basis of the constitutional principles of the Member States. is option raises the following questions: do Member States also requires a claimant to prove that it is distinguished individually, in the narrow sense of Plaumann or do they have reduced standing requirements in direct actions? Do individuals at the national level face equally diﬃcult hurdles when they want to challenge a legislative act. Let's see!

e German Federal Constitutional Court: a pioneer! Does the issue of standing in direct actions appear to be another classic Court of Justice-Bundesverfassungsgericht dispute? It seems like it. Contrary to the other systems analysed below, the German Constitution allows for direct actions against legal acts by individuals in the form of a constitutional complaint. In its 2021 order on the German climate act, the German Federal Constitutional Court applied the usual requirements of standing in direct actions to climate actions (12). e two step-test demands (1) the possibility of a violation of fundamental rights and (2) that complainants must be themselves, currently and directly affected by the act of public authority. While representative actions by environmental associations are not possible, the German individuals had standing in the 2021 case. With regard to (1), the Bundesverfassungsgericht held the climate act possibly violated the complainants right to life and health and property as well as – and the court was quite inventive here – their intertemporal guarantees of freedom (13). e claim that an act infringes fundamental rights has never been sufficient for the Court of Justice (14). With regard to (2), the German court emphasised a few points that particularly distinguish its reasoning from the Court of Justice's approach. e German court held that the fact that possible future restrictions necessary to tackle climate change will affect practically every person living in Germany does not prevent the claimants from being affected themselves (15). Here, the seriousness of possible future harm affecting everybody does not exclude standing for individuals, which is precisely contrary to the mentioned Court of Justice's view (16). Furthermore, the German court accentuates the necessity to give direct access to justice against laws now, contrary to the Court of Justice, which constantly refers to (sometimes unavailable) possibilities for indirect access (17). e German Court stresses the irreversible effects of climate change caused by the current law, which could no longer be successfully challenged later (18).

12. Order of the BVerfG of 24 March 2021, Climate Act (1 BvR 2656/18). 13. BVerfG, Climate Act, paras 98, 116 – 127. 14. Court of Justice, Peter Sabo and others, para 29. 15. BVerfG, Climate Act, paras 108 – 111, 131 – 132. 16. Court of Justice, Armando Carvalho and others, para 40. 17. Court of Justice, Armando Carvalho and others, para 60. 18. BVerfG, Climate Act, paras 108 – 111, 130.

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e 2021 German decision demonstrates something else: once you overcome the standing hurdle, a court can quickly rule on the merits as well. In this case, the Federal Constitutional Court held –remarkably in itself – that the complainants' intertemporal guarantees of freedom are violated by the German climate act since the burden to reduce greenhouse gas emissions is unilaterally oﬄoaded onto the future (19). Nevertheless, one Member State's approach does not amount to 'constitutional traditions common to the Member States in the sense of Article 6(3) TEU. is raises the question of whether other Member States rather tend to follow the Federal Constitutional Court or the European Court of Justice.

Restrictive standing and valid alternatives In order to have a panoramic view of the diﬀerent opportunities for climate change litigation in the EU Member States, we need to analyse the legal and judicial orders, which do not foresee a direct action for judicial review. e examples of countries in Europe limiting the access to individuals or groups to the constitutional judge are abundant (20). In the light of this consideration, to challenge a regulatory act or the lack of state measures regarding climate change, the constitutional justice and the viability of judicial review for individuals, NGOs and public interest groups is an essential element. is is especially true when the claim aims to challenge existing legislation. Nevertheless, constitutional justice does not exhaust the list of remedies. A far-reaching analysis must consider the alternatives that climate claimants can actually select as a litigation strategy in those stricter legal orders. 19. BVerfG, Climate Act, headnote 4. 20. G Tusseau, Contentieux constitutionnel comparé (Paris, LGDJ 2021), pp. 627-660.

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Administrative and civil litigation law offers other relevant remedies in such restrictive legal orders. erefore, it is necessary to encompass the 'complete system of remedies', as the Court of Justice describes it in the context of EU law (21). A er that, it is possible to assess the openness of a judicial order to climate litigation against the state, to understand what trends EU Member States have and whether the results can unveil any form of consensus about effective judicial remedies. For this purpose and in this format, it is useful to focus on two relevant examples: Italy and France. Both their legal orders can report very recent developments concerning large climate cases against the state. Both countries have a specialised organ with exclusive jurisdiction on judicial review of pieces of legislation, but they differ in many fundamental aspects. e Italian Corte Costituzionale has a strong judicial pro le (22), and has been very active, especially in relation to the role of the Court of Justice and the European Court of Human Rights in the national legal order (23). e French Conseil Constitutionnel has a different pro le, characterised by tighter links with the political dimension of the Republic (24). Nevertheless, individuals have limited and indirect chances to address the Court and the Council (25).

e Italian Constitutional Court, civil litigation and climate cases: the show is about to start According to Article 134 of the Italian Constitution, the Corte Costituzionale has jurisdiction on controversies on the constitutional legitimacy of laws and enactments having the force of law issued by the state and the regions (26). is jurisdiction is incidental during any proceedings before the administrative or the ordinary judge, referring a preliminary ruling request to the Constitutional Court (ex officio or solicited by a party). Nonetheless, the judge can also refuse to ask for a preliminary ruling when a party requests, in the case when they assess the request as prima facie manifestly unfounded (27). e Corte Costituzionale has never dealt with locus standi issues in climate change cases. erefore, the analysis must rely on different elds. Established case law of the court on admissibility requires the issue at stake in the proceeding before the Constitutional Court to be determinant in the main proceeding. In other words, the constitutionality issue cannot be the same issue in the main proceeding (28). is factor potentially limits any possi21. Judgment of the Court of Justice of 23 April 1986, Parti écologiste “Les Verts” v. European Parliament (C-294/83, EU:C:1986:166). 22. e een members are nominated by the President of the Republic ( ve), by the Parliament ( ve) and by the supreme ordinary and administrative courts ( ve), among justices of supreme courts, full professors, and lawyers with at least 20 years of legal practice (Article 135 of Italian Constitution). 23. E.g. Costa c. ENEL (Judgment 14/1964), Frontini (‘Controlimiti’, Judgment 183/1973), Taricco ( Judgment 115/2018), and Judgments 49/2015, 68/2017 about the ECHR. 24. e nine members are nominated by the President of the Republic (three), the President of the National Assembly (three) and the President of the Senate (three). ey are joined by the former Presidents of the Republic as ex officio members. (Article 56 of the French Constitution). e last three former Presidents chose not to sit in the Council. 25. Both courts have recognised in their case law the possibility to condemn the state in case of omissions (‘sentenze additive’ and the direct application of the Constitution, according to the Italian judges, and ‘méconnaissance (de l’étendue) de la competence’, according to the French Conseil). Tusseau, n 20, pp. 833-844. 26. As well as on: (2) con icts of competence and a ribution between the branches of the state and be ween the state and the regions and (3) charge against the President of the Republic (article 134 of the Italian Constitution). 27. Lucio Pegoraro, Giustizia costituzionale comparata (Torino, Giappichelli 2015), pp. 87-88. 28. See, e.g. Italy’s Corte Costituzionale, Porcellum case, Judgment 1/2014 and Italicum case, Judgment 35/2017, mentioned below.

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ble path for strategic litigation directly seeking such an objective. Eventually, these limits provoke short-circuits: in some cases, the plaintiff had violated a law before challenging a piece of legislation (29). One interesting element arises from electoral litigation. Judicial review on electoral law needs to be treated differently from the review of other legislative acts (30). Nevertheless, the 'Porcellum' case (31), and more clearly, the 'Italicum' case (32), give us interesting food for thought. e plaintiffs led a declaratory action to ascertain the respect of his fundamental right to vote, promoting the judicial review of the electoral law. Indeed, declaratory actions do not require the violation of the right at stake and can also be led regarding future prospective violations (33). Eventually, the Italian court declared the admissibility of the action, as it was the only viable way to challenge an electoral law, which cannot come at stake in different forms of litigation, to avoid a grey area free from constitutional control (34). It is very hard to affirm that the Italian court will adopt this same exception to a possible upcoming climate case, but it is useful to understand that exception is foreseeable to the general rule of stricter indirect access. In Italy, the only registered high-pro le case about climate change stems from civil procedure. In the recently led Last judgment case (35), a list of NGOs and individuals presented a claim against the Italian government seeking extra-contractual liability for its insufficient initiative (36). More speci cally, they propose two remedies: (1) a declaratory claim, aiming for the recognition that the incumbent measures do not meet scienti c standards and violate fundamental rights and (2) a condemnatory action for the reparation of the damages in the form of an order to perform an obligation upon the state to reduce the emissions by 92% comparing to the 1990 levels before 2030 (37). e civil court will be called to judge upon the climate measures of the state and upon the discretion in the legislative action vis-à-vis scienti c evidence. A prospective incidental judicial review to the Corte Costituzionale and/or a preliminary reference before the Court of Justice cannot be excluded. Very timely, on 8 February 2022, the Italian Parliament nally adopted a constitutional reform (38) that introduces environmental protection in Articles 9 and 41, including positive obligations upon the legislative and the executive.

29. See, e.g. Italy’s Corte Costituzionale, Costa c. ENEL, Judgment 14/1964, and the samesex marriage case, Judgment 138/2010. 30. Tusseau, n 20, pp. 845-858. 31. See note 28. 32. See note 28. 33. e law was not yet into force at the time of the proceeding. 34. Italy’s Corte Costituzionale, Italicum case, Judgment 35/2017, para 3. 35. e introductory act of the proceeding is available on the website of e Last judgment campaign here. (last retrievied 10 February 2022). 36. e claim mainly touches upon the Integrated National Energy and Climate Plan (PNIEC). 37. e Last Judgment campaign, Conclusions of the Introductory Act, see n. 35. 38. Proposta di legge costituzionale n.3156, nal approval: 8 February 2022 (Note of the Chamber of Deputies).

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France's climate cases and the administrative litigation as directly accessible review France's situation is radically different. Only the 2008 constitutional reform introduced the ex post judicial review (39). e possibility itself for a citizen to challenge the validity of a piece of legislation is a recent development. With the current question prioritaire de constitutionnalité, the access to the Conseil Constitutionnel is, however, also indirect. Contrary to the German approach and similarly to the situation before the Italian Constitutional Court, the French Constitutional Council accepts references proposed by a party in any judicial proceeding (administrative or ordinary), upon veri cation, by the referring judge, that the issue is relevant for the decision and not already decided by the Conseil Constitutionnel (40). Nevertheless, the constitutional framework and the organisation of the judiciary in France gives relevant alternatives to judicial review before the Conseil Constitutionnel. e executive branch enjoys a wide regulatory power, recognised by the Constitution and including generally applicable pieces of regulation. Most importantly, constitutionality review of such regulatory acts is a competence of the administrative judiciary offering direct remedies to individuals (41). Moreover, as opposed to Italy, any dispute against a public authority falls within the scope of public law litigation, excluding any civil claims. In particular, the recently successful Case of the Century had been led before the Administrative Court of Paris by four environmental NGOs. ey sought France's liability for its insufficient measures adopted to reduce greenhouse gas emissions. e court recognised the lack of governmental initiative as a contribution to the damage at the origin of the liability (42). In October 2021, the Administrative Court of Paris condemned the state: the remedy recognised does not really constitute nancial redress, but it consists of an obligation upon the state to take any necessary measure to repair the omission damage within 14 months (43).

e constitutional framework and the organisation of the judiciary in France gives relevant alternatives to judicial review before the Conseil Constitutionnel

39. Loi constitutionnelle 724/2008, 23 July 2008. 40. Moreover, the Loi constitutionnelle 2005-205, 1 March 2005, added the French Charter of the Environment to the ‘bloc de constitutionnalité’ as a judicial review parameter. 41. Pierre-Laurent Frier, Jacques Petit, Droit administratif, (Issy-les-Moulineaux, LGDJ 10th ed. 2015), 84-96, 451-464, 514-525, 571-620. 42. Tribunal Administratif de Paris, Judgment of 3 February 2021, ‘Affaire du Siècle’, Oxfam France, Notre Affaire à Tous, Fond. Pour la Nature et l’Homme, Greenpeace France, joint cases 1904967, 1904968, 1904972, 1904976/4-1. 43. Tribunal Administratif de Paris, Judgment of 14 October 2021, ‘Affaire du Siècle’, Oxfam France, Notre Affaire à Tous, Fond. Pour la Nature et l’Homme, Greenpeace France, joint cases 1904967, 1904968, 1904972, 1904976/4-1.

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e systems in France and Italy show what alternatives individuals and collective initiatives have to eﬀectively challenge an insuﬃcient legislative framework in countries where the legal order does not foresee direct actions against laws

Before increasing pressure coming from climate science and the growing phenomenon of strategic litigation as a more and more constant instrument of advocacy, a debate about the complete system of remedies available to challenge EU measures shall also consider the constitutional tradition of EU Member States

e same group of environmental NGOs led a voluntary intervention in a previous large case led by the Municipality of GrandeSynthe, a seaside commune in the north of France, particularly suﬀering from the consequences of climate change. e Council of State, in this case, condemned the government to act within nine months (44).

Conclusions e systems in France and Italy show what alternatives individuals and collective initiatives have to effectively challenge an insufficient legislative framework in countries where the legal order does not foresee direct actions against laws. e Case of the Century demonstrates that successful actions and campaigns involving legal mobilisation are still possible. Yet, on the one hand, the effective implementation in these speci c cases are still to be evaluated. On the other hand, not only in positive example countries, like Germany but also in countries with limited access to judicial review, the complete system of remedies offered a judicial alternative to challenge legislative measures under the national law in each of these systems. In light of the EU Green Deal and the most extensive application of the Aarhus Convention, EU institutions, particularly the Court of Justice, are called upon to act. Before increasing pressure coming from climate science and the growing phenomenon of strategic litigation as a more and more constant instrument of advocacy, a debate about the complete system of remedies available to challenge EU measures shall also consider the constitutional tradition of EU Member States. Claimants in direct actions at the Court of Justice itself have pointed to these traditions, but the Court of Justice did not bite (45). So far, it is sticking to its Plaumann-formula and thus stuck in the past.

44. France’s Conseil d’Etat, Judgment of 1 July 2021, ‘Grande-Synthe’, Commune de Grande-Synthe et M.B. A., n. 427301, ECLI:FR:CECHR:2021:427301 .20210701. 45. Court of Justice, Armando Carvalho and others, para 55.

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News Highlights 7 to 11 March 2022

Court of Justice to rule on Czech electoral rules in EU citizenship case Monday 7 March

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Position for Banking and Finance Lawyer available at European Investment Bank

e Court of Justice will rule in Commission v Czech Republic (C-808/21) on an action for annulment concerning the right of EU citizens under Article 22 TFEU to vote and to stand as a candidate at municipal and the European Parliament elections in the Member State they reside, under the same conditions as nationals of that State.

Monday 7 March

ECtHR applying new measures in cases involving Ukraine

Conclusions of the Justice and Home Aﬀairs Council

Monday 7 March

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e European Investment Bank is seeking to recruit a Banking and Finance Lawyer for its Legal Directorate (JU) – Outside Europe A Division (OEU-A) at its headquarters in Luxembourg. e deadline for applications is 24 March 2022.

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e European Court of Human Rights outlined a series of new measures it will apply to cases concerning Ukraine, in which it stands both as an application or defendant, in view of Russia’s ongoing military a ack against said country.

In its meeting on 4 March 2022, the Justice and Home Aﬀairs Council adopted conclusions on issues ranging from electronic evidence to online hate speech and access to legal counsel.

EU suspends all cross-border and transnational programmes and payments to Russia and Belarus

Vacancy position for Senior Legal Oﬃcer at ESMA

Monday 7 March

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e European Commission has suspended the cooperation with Russia and its ally Belarus as a further response measure to the Russian military aggression against Ukraine, aﬀecting the European Neighbourhood Instrument cross-border cooperation, the Interreg Baltic Sea region and the Horizon Europe programmes.

Monday 7 March

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Oﬃcial publication was made of a vacancy notice for the position of Senior Legal Oﬃcer within the Legal and Enforcement (LEX) Department of the European Securities and Markets Authority.

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EU Agency for Asylum’s situational report on EU rapid response to assist Ukrainian refugees

Ombudsman questions Commission’s position on principle of statistical con dentiality

Monday 7 March

Tuesday 8 March

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e EU Agency for Asylum provided information on the main legislative and non-legislative initiatives taken at the EU and Member State level to assist Ukrainian refugees.

e European Ombudsman delivered a decision in case 1170/2021/OAM, questioning the Commission’s conclusion that the principle of statistical con dentiality prevails over the transparency of information relating to emissions into the environment.

Proportionality requirement of penalties laid down in EU Directives has direct eﬀect, Court of Justice rules

Court of Justice: UK breached its obligation to implement customs control to counter fraud in respect of certain imports from China

Tuesday 8 March

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e Court of Justice ruled in NE v Bezirkshauptmannscha Hartberg-Fürstenfeld (C-205/20), that the requirement under Posting of Workers Directive 2014/67 that penalties must be proportionate has direct eﬀect, thereby overruling its previous case law as enshrined in Link Logistik (C-384/17).

Tuesday 8 March

Ombudsman criticised European Global Navigation Satellite Systems Agency’s rejection of submission in logo design contest

EU Justice and Home Aﬀairs Agencies joint statement on Ukraine

Tuesday 8 March

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In its decision in case 423/2021/OAM, the European Ombudsman criticised how the European Global Navigation Satellite Systems Agency (GSA) rejected a complainant’s submission in a contest to design a logo on the ground that there was a technical problem with the submission.

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e Court of Justice ruled in Commission v United Kingdom (C-213/19) that the UK has failed to ful ll its obligation to put in place risk-based approaches in customs control to combat fraud with regards to undervalued imports of textiles and footwear from China, despite repeated warnings about the risk of fraud by OLAF and the Commission.

Tuesday 8 March

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EU Justice and Home Aﬀairs Agencies expressed their rm commitment to the institutions of the European Union and its Member States in providing assistance to the Ukrainian state as well as to their fellow citizens to cope with the war aﬀecting the European continent.

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General Court: Référendaire position at the Cabinet of Ramona Frendo Tuesday 8 March

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Failure to obtain wri en consent before surgical operation as required under Spanish law breaches ECHR

Oﬃcial publication was made of a vacancy notice for the position of référendaire in the Private Oﬃce of Ms. Ramona Frendo, a judge at the General Court of the European Union, from 1 October 2022.

Tuesday 8 March

AG Emiliou’s Opinion on the compatibility with EU law of education provided exclusively in national language

Commission proposes a plan for EU to become independent from Russian energy sources

Tuesday 8 March

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e European Court of Human Rights ruled in Reyes Jimenez v. Spain that the failure to obtain parents’ wri en consent before a surgical operation of a minor led to a violation of Article 8 of the European Convention of Human Rights (right to respect for private life).

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In Boriss Cilevičs and Others (C-391/20), Advocate General Emiliou advised the Court of Justice to rule that national legislation obliging private higher education institutions to oﬀer courses only in the national language is compatible with EU law as long as such a measure is suitable and necessary in order to develop and promote the language.

e European Commission suggested a REPowerEU strategy to make Europe independent from Russian fossil fuels by 2030 starting with gas. e Commission considers that the EU simply cannot rely on an energy supplier who threatens its security and sees now an urgent need to accelerate the clean energy transition.

Russia Today challenges EU broadcasting ban before General Court

Commission adopts proposal on cohesion funding for Ukrainian refugees

Wednesday 9 March

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Russia Today (France) challenged before the General Court the restrictive measures adopted by the Council of the EU, which banned it from broadcasting its content in the EU in response to Russia’s invasion of Ukraine.

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e European Commission adopted a proposal for Cohesion’s Action for Refugees in Europe, which would allow Member States and regions to provide emergency support to people eeing from Russia’s invasion of Ukraine.

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Commission proposes rst-ever EU wide law to combat violence against women

ECtHR nds violation of protection of property rights in freezing of assets case

Wednesday 9 March

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e European Commission proposed a Directive to combat violence against women and domestic violence, criminalising rape based on lack of consent, female genital mutilation and cyber violence and strengthening victims’ access to justice.

e European Court of Human Rights in Shorazova v. Malta found a violation of protection of property in a freezing of assets case involving the widow of a former husband to the daughter of Kazakhstan’s President at the time, and was facing multiple serious criminal charges in Kazakhstan.

Measures safeguarding Ukrainian intellectual property rights agreed by Commission and EUIPO

Council agrees on new sectoral sanctions against Russia and Belarus

Wednesday 9 March

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In agreement with the Commission, the European Intellectual Property Oﬃce (EUIPO) adopted measures to safeguard the protection of intellectual property in Ukraine, including providing full support to Ukrainian customers while the situation prevents normal communication.

EFTA Court Annual Report 2021 ursday 10 March

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e Court of the European Free Trade Association made public its 2021 Annual Report, contains a useful summary of the cases decided by the EFTA Court in 2021, in which it delivered 17 judgments, all bar one being in response to a request for an advisory opinion.

Wednesday 9 March

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e Council of the EU has agreed to adopt additional sectoral measures against Russia and Belarus in view of their military aggression against Ukraine, including banning certain Belarusian banks from SWIFT, prohibiting transactions with the Central Bank of Belarus, banning the sale of maritime navigation goods to Russia.

National courts must apply CJEU case law nding free movement of capital breach, even when facts of the case change ursday 10 March

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e Court of Justice ruled in Grossmania (C-177/20) that national courts must apply an interpretation given by the Court of Justice in a previous preliminary ruling nding an incompatibility of national legislation with Article 63 TFEU, even when the facts of the subsequent proceedings are not entirely identical.

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Council agrees on mandate to ensure continued supply of medicines ursday 10 March

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27 leaders of the Council agreed on the mandate of a proposed Directive and Regulation that have as their fundamental purpose to ensure a continuous supply of medicines to Ireland, Northern Ireland, Malta and Cyprus.

Court of Justice dismisses Commission’s appeals in Germany State aid case concerning milk quality tests ursday 10 March

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Court of Justice rules on the need to have comprehensive sickness insurance to retain the right of residence ursday 10 March

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In VI v Commissioners for Her Majesty’s Revenue and Customs (C-247/20), the Court of Justice clari ed the question regarding the need for a third-country national to have comprehensive sickness insurance in the UK in order to retain a right of residence and receive rights to child bene ts.

AG Emiliou: pre-Lisbon quali ed majority still possible if requested according to Protocol no 36 rules ursday 10 March

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e Court of Justice dismissed two appeals lodged by the European Commission against the judgments of the General Court partially annulling the decision that declared State aid related to milk-quality tests in Bavaria incompatible with the internal market (joined cases C-167/19 P and C-171/19 P).

Advocate General Emiliou delivered his Opinion in Commission v Pologne (Protocole n° 36) (C-207/21 P), advising the Court of Justice to dismiss an appeal by the Commission and con rm the General Court’s nding on the application ratione temporis of Protocol No 36 to the Treaty of Lisbon.

Commission to investigate State aid granted by Greece to provider of postal services ELTA

Court of Justice clari es conditions for the detention of third-country nationals in specialised prisons

ursday 10 March

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e European Commission opened an in-depth investigation to assess whether certain Greek support measures in favour of postal operator Hellenic Post (ELTA) are in line with EU State aid rules.

ursday 10 March

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e Court of Justice clari ed in Landkreis Gi orn (C-519/20) con rmed that EU law precludes to detain third-country nationals, for the purpose of their expulsion, in such specialised facilities where the conditions to which the conformity of such legislation with EU law is subject under Procedures Directive 2008/115 are no longer, satis ed.

Nº93 · MARCH 11, 2022

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AG Pitruzzella’s Opinion on the concept of ‘family member who is the household of an EU citizen’ ursday 10 March

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In his Opinion in Minister for Justice and Equality (C-22/21), Advocate General Pitruzzella provided guidance to the Court of Justice on the concept of a ‘family member who is a member of the household’ of an EU citizen under Article 3(2)(a) of Citizens’ Directive 2004/38.

AG Collins Opinion on rights of parent companies to deduct taxable income losses from non-resident branches Friday 11 March

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Advocate General Collins advised the Court of Justice to rule in W (C-538/20) that national law, which prevents a resident company from deducting nal losses incurred by a branch in another Member State (where that law exempts losses by reference to a double taxation convention), does not amount to a restriction of the freedom of establishment.

Statement of EU leaders following Versailles European Council Friday 11 March

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An informal meeting of the European Council took place in Versailles, where EU leaders discussed the current situation in Ukraine following the Russian military aggression, the EU’s response to it, and the current increase in energy prices.

Russia to end participation in Council of Europe Friday 11 March

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Russia informed that it will no longer participate in the Council of Europe because EU Member States and NATO countries continue to pursue ‘a course towards the destruction of the Council of Europe and the common humanitarian and legal space in Europe’.

Obligation on transport companies to carry certain passengers free of charge must be compensated by Member States, AG nds

Agreement between Google and Meta for online display advertising investigated by Commission over competition concerns

Friday 11 March

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Advocate General Campos Sánchez-Bordona concluded in Lux Express Estonia (C-614/20) that national legislation requiring road passenger transport companies to carry certain categories of passengers free of charge constitutes a public service obligation and shall be compensated under Regulation 1370/2007.

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e European Commission opened an in-depth investigation into possible anticompetitive conduct by Google and Meta (formerly Facebook) in online display advertising, a tool that is used by many publishers to fund online content for consumers.

Nº93 · MARCH 11, 2022

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AG Szpunar’s Opinion on the applicability of free movement provisions to students with diplomas issued by multiple universities

AG Koko : 2018 Commission’s State aid decision does not preclude tax paid abroad from being set oﬀ against that payable in Gibraltar

Friday 11 March

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Advocate General Szpunar found that free movement provisions do not apply to situations where students have received a diploma in their host Member State, with a view to pursuing the profession there, even when the diploma has been awarded in collaboration with a university in another Member State (C-577/20).

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Advocate General Koko adopted her Opinion in Fossil (Gibraltar) (C-705/20), concerning the lawfulness of se ing oﬀ tax paid on royalty income against the tax payable in Gibraltar in light of the 2018 Commission’s decision that categorized a ‘passive interest and royalty income tax exemption’ in Gibraltar tax law as unlawful and incompatible State aid.

Commission consults Member States on its proposal for Temporary Crisis Framework to support sectors aﬀected by war in Ukraine Friday 11 March

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e European Commission is seeking feedback from Member States on a dra proposal for a State aid Temporary Crisis Framework to support the EU economy in the context of Russia’s invasion of Ukraine.

Insights, Analyses & Op-Eds On the EU Commission’s hybrid investigation in the trucks cartel: the General Court con rms that the Commission can be impartial in a standard decision a er having adopted a se lement decision by Patricia Pérez Fernández

e GDPR does not prevent eﬀective administration (but requires appropriate legal bases) by Meinhard Schröder

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Op-Ed assessing the General Court’s judgment in Case T799/17, Scania and others v Commission. e author in particular analyses the nding that ‘hybrid’ procedures in cartel ma ers can respect the legality principle.

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Analysis of the Court of Justice’s judgment that clari es (i) the distinction between the GDPR and the ‘police Directive’ 2016/680, (ii) the possibilities of a derogation from the GDPR without a legal basis; (iii) the prerequisites for information requests.

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EU’s Neocolonialism: Safeguarding the Purity of Ni-Vanuatu Blood through Blackmail by Dimitry V. Kochenov & William

What hath night to do with sleep?’ Diﬀerences in treatment between the public and private sectors are admissible concerning night work if they have reasonable grounds

omas Worster READ MORE ON EU LAW LIVE

Op-Ed analysis of the Council’s decision to uphold the Commission’s proposal to partially suspend visa-free travel to the Schengen zone for the Vanuatu citizens (on passports issued a er 25 May 2015). e authors assess what they call “the arbitrariness of the awed reasons behind the suspension”.

by José María Miranda Boto

Op-Ed on the case VB v Glavna Direktsia ‘Pozharna bezopasnost i zaschtita na naselenieto’ kam Ministerstvo na vatreshnite raboti (C-262/20) assessing the nding that there exists a possibility of establishing diﬀerent rules for the public and private sectors when transposing a directive.

A High Standard to Meet in Damages Actions Against the EU for Breaches of EU Competition Rules: e General Court Dismisses UPS’ (T-834/17) and ASL’s (T-540/18) Actions Following the Prohibition of the UPS/TNT Merger by David Pérez de Lamo

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Cooperation as Usual? Execution of EAWs and Systemic Risk of Unfair Trials in the X and Y v Openbaar Ministerie judgment of the Court of Justice by Francesco Rossi

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Analysis of the General Court’s judgments dismissing two actions for damages brought by United Parcel Service (‘UPS’) and ASL Aviation Holdings (‘ASL’) against the Commission, a er the Court annulled the Commission’s decision prohibiting the proposed concentration between UPS and TNT Express.

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Analysis of the Court of Justice’s judgment that deals with the criteria that national judges shall apply to refuse the execution of a European arrest warrant (EAW) in exceptional cases of real risk of rule of law infringements in the issuing Member State.

Constitutional Court versus EU Law – A Romanian Saga. e Judgment in Case C-430/21 RS

Taxing the void: withholding tax on notional interest of an interest-free loan (Case C- 257/20)

by Bianca Selejan-Guțan

by Almut Breuer

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Op-Ed analysing the last stage of the Romanian ‘primacy saga’, namely the latest judgment of the Court of Justice dealing with the role of the Constitutional Courts in applying the primacy of the EU law.

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Op-Ed on the Court of Justice’s judgment in ‘Viva Telecom Bulgaria’ (C-257/20), cncerning the corporate income tax consequences of interest-free loans. One would argue that where there is no interest due, there is also no interest to be taxed.

Nº93 · MARCH 11, 2022

Weekend

Edition stay alert keep smart

UK citizens who had previously exercised their free movement rights do not retain the status or bene ts of Union citizenship: Opinion of Advocate General Collins in Préfet du Gers

e Who, What, When, Where, and What If Not of Information Requirements In Case of Unit-Linked Group Life Assurance (Joined Cases C-143/20 and C-213/20)

by Emily Hancox

by Fabrizio Esposito

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Op-Ed on the Advocate General’s Collins Opinion in Préfet du Gers (C-673/20) assessing the eﬀects on the rights derived from the Union citizenship, in this case the electoral rights, of a British national following the UK’s withdrawal from the European Union.

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Op-Ed on the judgment in A (Contrats d’assurance ‘unitlinked’) that assesses, in case of a sophisticated nancial transaction called ‘unit-linked group life assurance’, the who, what, when (and where) of the information requirement, as well as what consequences for its violation under the Life Assurance Directive and the Unfair Commercial Practices Directive.

When are Palestinian refugees entitled to refugee status under EU law? NB and AB (C-349/20) by Louise Halleskov

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Analysis of the judgment in NB and AB (C-349/20), in which the Court of Justice interpreted the Quali cation Directive (2004/83/EC) in order to address the question of important practical relevance, that is when Palestinian refugees are entitled to refugee status under EU law.