Nº29
SEPTEMBER 19
2020
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Albrecht Wendenburg
FAILURE TO NOTIFY NATIONAL MEASURES THE ‘ONE-STAGE INFRINGEMENT PROCEDURE’ (ARTICLE 260(3) TFEU) IS GAINING MOMENTUM
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Nº29 · SEPTEMBER, 19 2020
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Failure to notify national measures
The ‘one-stage infringement procedure’ (Article 260(3) TFEU) is gaining momentum Albrecht Wendenburg 1
One-stage infringement procedures increase the probability of sanctions. Also, sanction-free infringement periods are avoided
In July 2019 and July 2020, the CJEU (Court of Justice of the EU) activated and rened the ‘one-stage infringement procedure’ (Article 260(3) TFEU). This is the accelerated infringement procedure introduced by the Lisbon Treaty, which empowers the Commission to apply for monetary sanctions already during the rst court procedure commenced against the Member State that failed to notify transposition measures in due time (2). In this article, I will briey describe how the one-stage infringement procedure works (Part 1). Then I will outline the key messages of three relevant Grand Chamber judgments as well as their practical implications (Part 2). This will be followed by some recommendations to avoid sanctions in the one-stage infringement procedure (Part 3).
‘When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to full its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.
Part 1 – How does the ‘one-stage infringement procedure’ (Article 260 (3) TFEU) work?
If the Court nds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specied by the
First, it is worth looking at Article 260(3) TFEU (not underlined in the original):
1. Albrecht Wendenburg, Dr. jur., LL.M., Head of Unit, European law at the Ministry for Europe of Lower Saxony, Germany, and Lecturer in European law at Leuphana University, Lüneburg, Germany. The views set out in this article are strictly personal. 2. Gáspár-Szilágyi, 19 (2013) EPL 281; also cf. Wennerås, 49 (2012) CMLR 145, Peers, 18 (2002) EPL 22; Várnay, 23 (2017) EPL 301; Pingel 2019 RTDE 663.
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the accelerating effect of the one-stage infringement procedure is clearly visible. The same is true for the time spans in which Member States can be sanctioned, highlighted by the dark background.
Commission. The payment obligation shall take effect on the date set by the Court in its judgment.’ What are the special features of the onestage infringement procedure? How does it differ from the conventional ‘two-stage infringement procedure’ (Articles 258, 260(1) and (2) TFEU)?
In the one-stage infringement procedure, the judgment imposing sanctions would be delivered on 15 February 2023. The sanctions reach back to 1 January 2021 (Figure 1). In the two-stage procedure, the judgment would be delivered on 1 April 2026, namely more than three years later. The sanctions only reach back to 15 July 2023. Hence, in contrast to the one-stage procedure, there is a ‘sanction-free infringement period’ between 1 January 2021 and 15 July 2023 (Figure 2).
• Obviously, the main advantage of the one-stage infringement procedure is the narrowing of the procedure to only one prelitigation procedure and one court procedure(instead of two in each instance). • Another main difference is that in onestage infringement procedures, the Member State can be sanctioned for the period before the CJEU judgment has been delivered. By contrast, in the two-stage infringement procedure no sanctions are possible concerning the period before the CJEU's rst decision, which is declaratory, only (Article 260(1) TFEU). The differences between one-stage and twostage infringement procedures are illustrated in Figures 1 and 2. They build on a hypothetical directive that is to be implemented by 31 December 2020. The deadlines correspond to the Commission’s current practice and objectives: in one-stage infringement procedures, it aims to conclude the pre-litigation phase within 12 months. In two-stage infringement procedures, it aims for at least 16 months. At present, the average length of court proceedings at the CJEU is 14.4 months. Comparing the dates for the judgment imposing sanctions,
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Figure 1: one-stage infringement procedure
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(Background note: Penalty payments concern the period following the delivery of the judgment and impose daily sanctions for each day of delay after the delivery of the judgment. Lump sums, however, retroactively penalise the infringement prior to the judgment.)
The Commission has quickly recognised the potential of the new procedure: Shortly after the entry into force of the Lisbon Treaty, it announced in 2010 that the ‘instrument should be used as a matter of principle in all cases of failure to full an obligation covered by this provision’. This was followed in 2016 by the further announcement that from then on lump sums and penalty payments would both be applied for in principle. In case the Commission has applied for a lump sum payment before the CJEU and the directive is transposed during the court proceedings, the Commission proclaimed that it ‘will no longer withdraw its action for that reason alone’. Late transposition of the directive during the court proceedings will therefore no longer prevent the imposition of a lump sum payment by the CJEU. This further increases the probability of a sanction being imposed on the Member States.
Part 2: Core ndings of the Grand Chamber The rst and leading judgment on the onestage infringement procedure was delivered in July 2019: Commission v Belgium – High-speed networks (C-543/17). Two largely identical rulings followed in July 2020: Commission v Romania (C-549/18) and Commission v Ireland (C-550/18). These three judgments illustrate the risks of late transposition of directives: Commission v Belgium – High-speed networks (C-543/17) What was the issue? Belgium had failed to transpose Directive 2014/61/EU on measures to reduce the cost of deploying highspeed electronic communications networks on time. At the end of the transposition period, Belgium had not yet notied any transposition. At the end of the court proceedings, only implementation in the ‘Brussels Capital’ was still incomplete. The CJEU imposed a penalty payment of 5,000 euros per day starting from the day of delivery of that judgment until Belgium complied with its obligations. (The Commission had not led an application for the imposition of a lump sum.)
Figure 2: two-stage infringement procedure
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The transposition notification should be 'article specific' and cover the entire territory of the Member State. Correlation tables are suggested.
safe side of a two-stage infringement procedure for the time being. It came as no surprise that many Member States considered that the notication of a partial transposition was already sufcient (Commission v Belgium – High-speed networks (C-543/17) paragraphs 44-45). Setting the counterpoint, ‘hardliners’, including AG Wathelet and AG Tanchev, have argued (in other cases which have been withdrawn thereafter) that Member States must not only notify the transposition of all the requirements of the directive, but that the transposition must also be correct in substance.
Failure to notify measures transposing a directive The most important statement of this judgment concerned the transposition notication of the Member States. Essentially, this boils down to the following question: When have the Member States done enough to evade a one-stage infringement procedure that immediately casts any disagreement with the Commission under the sword of Damocles for sanctions?
The CJEU struck a balance between these positions (Commission v Belgium – Highspeed networks (C-543/17) paragraph 59), not underlined in the original): ‘In the light of all the foregoing, the expression “obligation to notify measures transposing a directive” in Article 260(3) TFEU must be interpreted as referring to the obligation of the Member States to provide sufciently clear and precise information on the measures transposing a directive. In order to satisfy the obligation of legal certainty and to ensure the transposition of the provisions of that directive in full throughout its territory, the Member States are required to state, for each provision of the directive, the national provision or provisions ensuring its transposition. Once notied, where relevant in addition to a correlation table, it is for the Commission to establish, for the purposes of seeking the nancial penalty to be imposed on the Member State in question laid down in that provision, whether certain transposing measures are clearly lacking or do not cover
This question is highly relevant in practice. Disagreements between Member States and the Commission on the correct implementation of directives are inherent in the nature of directives. They explicitly leave Member States ‘the choice of form and methods’ to achieve a given result (Article 288(3) TFEU). Is the Commission allowed to launch a one-stage infringement procedure merely if it disagrees as to the correct implementation of a directive? Or is it to be referred to the two-stage procedure, which initially only leads to a declaratory judgment of the CJEU, but not to the imposition of sanctions? Conversely, the question arises as to whether any partial transposition is sufcient to ensure that Member States are on the
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The CJEU thus establishes a ‘dynamic system’: the more detailed the notication made by Member States of the transposition, the higher the requirements for a one-stage infringement procedure (3).
all of the territory of the Member State in question, bearing in mind that it is not for the Court, in court proceedings brought under Article 260(3) TFEU, to examine whether the national measures notied to the Commission ensure a correct transposition of the provisions of the directive in question.’
Sanction: penalty payments The CJEU also ruled that penalty payments may be imposed starting from the date of delivery of the judgment. This issue was previously a matter of controversy as well. AG Szpunar, for example, took the view that the CJEU must always give the Member States a ‘nal deadline’.
What are the consequences? • Only ‘article-by-article’ notications of the transposition of the directive, covering the entire territory of the Member State, can prevent the launch of a one-stage infringement procedure by the Commission.
The low level of the penalty payment of 5,000 euros per day imposed by the CJEU can only be explained by the small part of the Belgian territory, the ‘Brussels Capital’ Region, still being affected at the end of the court proceedings. Indeed, the CJEU found Belgium’s infringement ‘undoubtedly serious’ and noted a ‘signicant’ length of delay in transposing the Directive, which at the time was two and a half years (Commission v Belgium – High-speed networks (C-543/17) paragraphs 85 and 88). The Commission, for
• Partial notications are not sufcient to avoid a one-stage infringement procedure. • If the notication is complete, questions on the correct implementation of the directive will be dealt with in the two-stage infringement procedure. • Once Member States have notied full transposition, the burden of proof for an incomplete notication passes to the Commission.
Figure 3: Possible penalty payments for Belgium based on the Commission's calculation method – coefcient for seriousness of 9, one-stage infringement procedure
3. Wendenburg (2019) Europarecht 637 (653).
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its part, had initially applied a so-called ‘coefcient for seriousness’ of 9, which it later reduced to 1 (scale 1-20), following partial transpositions by Belgium.
‘n’ accordingly (DE = 4,62, FR = 3,39, IT = 2,92, ES = 2,07, PL = 1,27, NL = 1,14, etc.). For example, for Germany, this results in penalty payments of between 129,563.28 and 388,689.84 euros per day).
Sample calculation
Commission v Romania (C-549/18) and Commission v Ireland (C-550/18)
These determinations would have allowed for signicantly higher (daily) penalty payments. According to the Commission's calculation method in force today and based on a ‘coefcient for seriousness’ of 9 (complete non-implementation by the end of the court proceedings), the penalty payments for Belgium would range from 22,154.76 euros to 66,464.28 euros per day.
The two parallel cases against Romania and Ireland concerned the transposition of the 4th Money Laundering Directive (EU) 2015/849. Romania had failed to transpose the Directive within the transposition deadline, and Ireland had notied only partial transposition. The action was brought 13 months after the expiry of that deadline, only just after the targeted 12-month period. (The Commission had previously rejected a request from Romania to extend the two-month deadline set in the Commission’s ‘reasoned opinion’.) Du-
(Side note: This forecast of penalty payments, which is based on a ‘coefcient for seriousness’ of 9 (scale 1 - 20), can easily be transferred to other Member States. This is done by adjusting the Member-State-factor
Member States can expect a launch of infringement proceedings within a few weeks of the transposition deadline.
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ring the court proceedings, Romania and Ireland both fully transposed the Directive and notied its transposition. Unlike in the case against Belgium (see above), the Commission therefore did not apply for penalty payments but for a lump sum. The CJEU largely granted these requests in its judgments of 16 July 2020, rounding off the respective requested penalty payments. Consequently, the CJEU ordered Romania and Ireland to pay a lump sum of three million euros and two million euros respectively.
Afrmation of the Commission's rigorous procedural approach The CJEU also conrmed the Commission's rigorous handling of the case (Commission v Romania (C-549/18) paragraphs 70 - 71). This conrms the Commission's objective of bringing an action within only 12 months of the transposition deadline. Implicitly, the CJEU also endorses the refusal to grant extensions of time limits, as in the present case with Romania. Member States can therefore expect infringement proceedings to be launched within a few weeks of the transposition deadline. (In the cases against Romania and Ireland, it was over three weeks, only.) Previously, with regard to the ‘the alleged short duration of the pre-litigation phase’, AG Tanchev had pointed out that ‘over one year elapsed after the transposition deadline set in Directive 2015/849 (26 June 2017) before the Commission brought this action (27 August 2018)’. This indicates the direction in which things are heading.
No withdrawal of the action during the court proceedings Most importantly, the CJEU conrmed the Commission's practice, announced in 2016, of applying for a lump sum even if the directive has been transposed in the meantime. Ireland claimed that this was in breach of the principles of proportionality (Article 5(4) TEU) and loyal cooperation (Article 4(3) TEU). It also complained that ‘the Commission’s objective is to make an example of Ireland and to prompt the other Member States, in future, to comply with the transposition periods prescribed in directives’ (Commission v Ireland (C-550/18) paragraph 51).
Finally, the CJEU ruled that the Commission was not required to give specic reasons for initiating a one-stage infringement procedure (Commission v Romania (C549/18) paragraph 48 et seq. and Commission v Ireland (C-550/18) paragraph 58 et seq.). The one-stage infringement procedure was ‘only an ancillary mechanism of the infringement proceedings’, to be launched at the discretion of the Commission, only. The CJEU could indeed rely on the wording of Article 260(3) TFEU (‘the Commission … may … when it deems appropriate’).
The CJEU did not accept this reasoning (Commission v Romania (C-549/18), paragraph 66 and Commission v Ireland (C550/18), paragraph 67) – rightly so, as Article 260(3) TFEU expressly provides for lump sums as sanctions. Lump sums penalise the duration of the infringement prior to the judgment up to the time the situation is rectied. This aspect does not lose its purpose subsequent to a late transposition of a directive during the court proceedings.
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However, another aspect is more problematic: while the Commission differentiates between lump sums and penalty payments, it does not distinguish between one-stage and Nor could Romania or Ireland claim that two-stage infringement procedures when it their national law ‘anyway’ complied with comes to these sanctions. This ignores the gethe Directive, which therefore did not need nerally lower seriousness of infringements to be transposed. Due the requirement of a rein one-stage infringement procedures: the ference set in Article 67 Directive (EU) one-stage infringement procedure ‘only’ 2015/849 ‘it is, in any event, necessary for concerns the incorrect transposition notiMember States to adopt a specic measure cation, not the correct transposition of the ditransposing the directive in question’, at rective in terms of content. Moreover, the least in a notice on its ofcial publication two-stage infringement procedure always (Commission v Romania (C-549/18) parasanctions a two-fold infringement: failure graph 20 and Commission v Ireland (C‘to full an obligation under the Treaties’ 550/18) paragraph 31). As such a reference and failure to comply requirement is the stanwith the rst, declaratory dard in directives today, The Commission’s judgment of the CJEU this statement can be gemethodology disregards (Article 260(1) and (2) neralised. TFEU). Such a two-fold the generally lower infringement is missing seriousness of infringements with one-stage infringeSanction: lump sum in one-stage infringement ment procedures. For the rst time, the procedures The ‘coefcient for seCJEU had to rule on an riousness’ applied by the application for the impoCommission could, in theory, address this sition of a lump sum in a one-stage infringedifference. However, this is only possible if ment procedure. the so-called ‘minimum xed lump sum’ laid down as a base for each Member State No methodological distinction from the and irrespective of the difference between two-stage infringement procedure one-stage and two-stage infringement procedures, is exceeded. These ‘minimum xed First of all, the CJEU approves the paramelump sums’ constitute the minimum thresters established by the Commission to deterhold for lump sums. Depending on the Memmine the lump sum (Commission v Romania ber State, the minimum xed lump sums cu(C-549/18) paragraph 72 and Commission v rrently range from 232,000 euros (Cyprus) Ireland (C-550/18) paragraph 82. These are to 11,915 million euros (Germany). Indeed, the seriousness of the infringement, the durathe ‘minimum xed lump sums’ might be tion of the infringement and the ability to disproportionately high when it comes to pay of the Member State concerned. At rst one-stage infringement procedures. glance, there are few objections to this. Renement of the requirements for the transposition notication
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affected. Such indirect impact on the EU's ‘power of the purse’ is quickly established, for example in the eld of VAT. In view of the increasing importance of the EU's own resources (Article 311 TFEU), more and more references to the EU budget will be possible in the future.
Moreover, in line with its practice concerning penalty payments (see above Figure 3), the Commission applies the rather high ‘coefcient for seriousness’ of 8 (scale 1-20) for non-transposition of a directive in onestage infringement proceedings (Commission v Romania (C-549/18), paragraph 58). As will be shown below (Figure 4), this leads to lumps sums that are much higher than the respective minimum xed lump sums. This makes it even less likely that the Commission will succeed in properly differentiating between the two infringement procedures when it comes to the level of sanctions.
The seriousness of the infringement is, in the view of the CJEU, also reinforced by the fact that, at the end of the transposition period, ‘Romania had still not adopted the slightest measure’ (Commission v Romania (C549/18) paragraph 75) and that Ireland ‘had adopted measures … only in relation to a single provision of that directive’ (Commission v Ireland (C-550/18) paragraph 84). These observations suggest that, conversely, substantial partial transpositions may not prevent the initiation of one-stage infringement procedure, but may at least reduce the level of sanctions.
Seriousness of the infringement In the context of the ‘seriousness of the infringement’ criterion, the CJEU then questions the scal signicance of the Directive in the Union legal system (not underlined in the original):
Practices or circumstances existing in the Member States’ legal order, including the ‘complexity of the directive’s provisions’ (Commission v Romania (C-549/18) paragraph 76), continue to be irrelevant.
‘Furthermore, Directive 2015/849 is an important instrument for ensuring that the European Union’s nancial system is effectively protected against the threats from money laundering and terrorist nancing. The absence or inadequacy of such protection of the European Union’s nancial system must be considered particularly serious in the light of its effects on public and private interests within the European Union’ (Commission v Romania (C-549/18) paragraph 73 and Commission v Ireland (C-550/18) paragraph 82).
Duration of the infringement: Relevant deadlines Finally, the CJEU conrms the Commission's view, already expressed in 2010, that the date of expiry of the transposition period must be considered when calculating the duration of the infringement (not underlined in the original):
These ndings are likely to pose a risk to Member States with regard to future sanctions as soon as the EU budget is (indirectly)
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‘Any other approach would indeed be tantamount to calling into question the effecti-
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infringement with a view to determining the amount of the lump sum to be imposed pursuant to Article 260(3) TFEU, to take into account the date of transposition provided for by the directive at issue itself’ (Commission v Romania (C-549/18), paragraphs 81-83 and Commission v Ireland (C-550/18), paragraphs 92-95).’
veness of the provisions of directives setting the date on which the measures transposing those directives must enter into force. Since, … in order for a letter of formal notice to be issued, in accordance with the rst paragraph of Article 258 TFEU, a prior failure by the Member State concerned to full an obligation owed by it must be capable of being legitimately alleged by the Commission …, Member States which had not transposed a directive as at the date laid down therein would, in that scenario, enjoy at all events an additional transposition period, whose duration would moreover vary according to the speed with which the Commission initiated the pre-litigation procedure, without its nonetheless being possible to take into account the duration of that period when evaluating the duration of the failure to full the obligations at issue. … Consequently, in order to ensure that EU law is fully effective, it is appropriate, when evaluating the duration of the
This reasoning can easily be extended from lump sums to penalty payments. The amount of the penalty payment is also reduced if a later starting date is chosen (see above: coefcient for duration, Figure 3). However, such an extension would require a change in the CJEU's case law. In fact, the CJEU is currently referring to the later date of expiry of the deadline set by the Commission in the ‘reasoned opinion’ when it comes to penalty payments (Commission v Belgium – High-speed networks (C-543/17) paragraph 88. Sample calculations In the present cases, the CJEU only imposed relatively small lump sums (Romania: three million euros, Ireland: two million euros). Nevertheless, as with penalty payments (see above), the CJEU's ndings in the eld of lump sums would allow for signicantly higher sanctions. Unlike penalty payments, there is no upper limit for the lump sum. In fact, according to the Commission's metho-
Figure 4: Possible lump sums for non-transposition over 775 days for selected EU Member States, given a severity coefcient 8 (one-stage infringement procedure)
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dology, the amount is inter alia determined by the number of days (as a multiplier) between the expiry of the period for transposition of the directive and the entry into force of the transposition measure or the judgment imposing the penalty.
• As co-legislators in the Council of the EU, the Member States must not accept unrealistically short transposition deadlines. The two-year transposition period currently favoured is obviously too short in many cases.
Based on the above illustrative example (Figure 1), in the one-stage infringement procedure there are 775 days between the expiry of the transposition deadline (1 January 2021) and the sanction decision (15 February 2023). For the period of complete non-transposition, the Commission assumes a ‘coefcient of seriousness’ of 8 (scale 120) (Commission v Romania (C-549/18) paragraph 58).
• Once adopted, the Member States must respect the deadlines for transposing the directives and notify the Commission of their transposition in due time. This notication should be ‘article specic’ and cover the entire territory of the Member State. The use of a correlation table is recommended. • If Member States are unlikely to succeed in transposing the directive timely, they should at least try to transpose the directive within 12 months of the transposition deadline, to avoid litigation before the CJEU.
On this basis, total non-implementation results in sanctions that are signicantly higher than the respective minimum xed lump sums (Figure 4).
• On an ongoing basis, Member States should try to reduce the risk of sanctions at least in respect of the total amount by transposing substantial parts of the directive.
Part 3: Concluding remarks and recommendations The Member States have created a new instrument in Article 260(3) TFEU, which now turns against them if they fail to meet the transposition deadlines they once adopted in the Council of the EU (together with the European Parliament, Articles 260(3), 289, 294 TFEU).
• At the very least, the transposition of the directive should take place during litigation. This at least helps avoiding penalty payments. During litigation, however, lump sums will be unavoidable if the Commission requests them.
The analysis of the three leading Grand Chamber judgments (see above) leads to the following recommendations:
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Outlook concerning cumulating of sanctions in the two-stage infringement procedure: Commission v France (C-304/02), paragraph 83). Corresponding one-stage infringement cases are already pending before the CJEU: Commission v Slovenia (C-628/18) and Commission v Spain (C-658/19).
Now that there have been decisions on both penalty payments and lump sums in the onestage infringement procedure, it is only a matter of time until the CJEU has to rule on an application for the cumulative imposition of both sanctions. Although this contradicts the wording of Article 260(3) TFEU (‘or’), it is likely to be approved by the CJEU (cf.
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News Highlights 14 to 18 September 2020
EU-China Geographical Indications Agreement signed Monday 14 September
ECB announces lists of Bulgarian and Croatian banks it will directly supervise as of October 2020
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Monday 14 September
The EU and China signed a bilateral agreement to protect Geographical Indications (GIs) against usurpation and imitation. The agreement, rst concluded in November 2019, and signature of which was authorised by the Council in July 2020, will protect 100 European GIs in China and 100 Chinese GIs in the EU.
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The European Central Bank announced that it would be directly supervising ve banks in Bulgaria and eight banks in Croatia as of October 2020, and also overseeing other institutions, further to close cooperation that has been established towards future participation of those Member States in the euro area.
Commission launches expiry reviews of anti-subsidy and anti-dumping measures on imports of biodiesel originating in the USA
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Two expiry reviews concerning anti-subsidy measures for imports of biodiesel originating in the United States were initiated, now open to the views of all interested parties.
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The Grand Chamber of the Court of Justice gave its rst ruling on internet neutrality, nding a violation of EU rules that protect open internet access and prohibit discrimination by treating internet trafc differently, and providing its rst interpretations of provisions of the Open Access Internet Regulation 2015/2020.
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The Court of Justice held in Romenergo and Aris Capital (C-339/19) that a national measure limiting the shareholding in a nancial investment company to 5% constitutes a restriction of the free movement of capital that in the circumstances could not be justied on the grounds in Article 65 TFEU, nor by an overriding reason in the public interest.
State of the Union: President von der Le- National law denying a professional yen presents Commission priorities qualifications exemption should be baand initiatives sed on consistent, foreseeable and reasonably ascertainable criteria: AdvocaWednesday 16 September READ MORE ON EU LAW LIVE te General Bobek European Commission President Ursula von der Leyen gave her State of the Union address at the Plenary of the European Parliament, presenting the Commission’s priorities for the upcoming months as well as announcing the main initiatives that it will be pushed forward in that regard.
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Wednesday 16 September
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Advocate General Bobek advised the Court in Adina Onofrei (C-218/19) that Articles 45 and 49 TFEU preclude the French legal provision at hand that imposes conditions before a professional qualications exemption can be available to those who have performed legal work in an administration, public service, or international organisation for at least eight years, and that any conditional criteria must be based on consistent and foreseeable criteria, which can be reasonably ascertained ex ante by all interested parties.
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Court of Justice confirms that electricity is not included in Class 4 of the 8th Edition of the Nice Classification Wednesday 16 September
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The European Commission released its report on the application in 2019 of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, assessing how the Commission safeguarded the effectiveness of the citizens’ right of access to documents held by it over the last year.
Court of Justice: Spanish National Commission on Markets and Competition is not a ‘court or tribunal’ under Article 267 TFEU
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The Court of Justice declared the request for a preliminary ruling made by the Spanish National Commission on Markets and Competition inadmissible because it is not a ‘court or tribunal of a Member State’ as set out by Article 267 TFEU.
The European Court of Human Rights found no breach of the right to a fair trial under Article 6(1) ECHR had been committed by the administrative decisions dismissing appeals against a senior prosecutor’s demotion for failing to carry out her duties properly in a high-prole investigation into the alleged sexual abuse of a child, in the context of political and media interference in the case.
EU Intellectual Property Office: Guidance for post-Brexit transition period
Advisory Opinion Request to the EFTA Court made by Borgarting Court of Appeal published
Wednesday 16 September
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The EUIPO published updates in the Brexit section on its website on how the Ofce will be operating once the Brexit transition period ends on 31 December 2020, resulting in EU IP law ceasing to apply to the UK, in the form of ‘general instructions’, that are ‘informative’ only for stakeholders and users, and which will need to be adapted to specic cases.
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Thursday 17 September
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The EFTA Court has been asked for a ruling on the legal assessment, and legally relevant factors to take into account, to determine whether a profession in the State where the qualication was obtained, and that in the host State, are the ‘same profession’ under Articles 1 and 4 of the Professional Qualications Directive 2005/36.
Nº29 · SEPTEMBER, 19 2020
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Shipping industry must contribute to climate neutrality, says European Parliament
Court of Justice strikes out Commission Decision on State aid and reduction in employees’ contributions
Thursday 17 September
Thursday 17 September
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The European Parliament adopted its position on the Commission’s proposal to revise the EU system for monitoring, reporting and verifying CO2 emissions from maritime transport, advocating a global and ambitious agreement on greenhouse gas emissions from shipping.
The Court of Justice ruled in Compagnie des pêches (C212/19) that the applicants in the main proceedings did not have a clear interest to bring an action, namely did not have standing, at the time the Commission’s State aid Decision was made, and found that the Commission erred in law in considering that the undertakings had benetted from an advantage.
Commission Implementing Regulation on the EU’s renewable energy financing mechanism
AG’s Opinion on the scope and legal nature of EBA’s recommendations in the context of deposit-guarantee schemes
Thursday 17 September
Thursday 17 September
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Commission Implementing Regulation 2020/1294 was published on the EU’s renewable energy nancing mechanism, a step in the implementation of Regulation 2018/1999 on the Governance of the Energy Union and Climate Action, which in turn sets out the necessary legislative foundation for a cost-efcient, transparent and predictable governance of the Energy Union and Climate Action.
Advocate General Campos Sánchez-Bordona’s Opinion in Balgarska Narodna Banka (C-501/18) advised the Court on the interpretation of Directive 94/19 on deposit-guarantee schemes, as well as the legal nature and scope of the recommendations of the European Banking Authority in this context.
Free movement of goods: Court of Justice’s judgment on restrictions to exports of electricity
Court of Justice confirms General Court’s interpretation of scope of MEP immunity in Troszczynski v Parliament
Thursday 17 September
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In Hidroelectrica (C-648/18) the Court ruled that Articles 35 and 36 TFEU are to be interpreted as meaning that national legislation, which requires national electricity generators to offer all available electricity on the platforms operated by the sole designated operator for the exchange services of the national electricity market, constitutes a measure having equivalent effect to a quantitative restriction on exports.
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Thursday 17 September
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The Court ruled in a case on the extent of immunity enjoyed by the Members of the European Parliament under Protocol No 7 of the privileges and immunities of the EU in Troszczynski v Parliament (C-12/19 P), dismissing the appeal in its entirety.
Nº29 · SEPTEMBER, 19 2020
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ECB’s Governing Council: exceptional circumstances justify leverage ratio relief Thursday 17 September
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ECtHR: Finnish authorities breached right to life by failing to take precautionary measures before a school shooting READ MORE ON EU LAW LIVE
Commission presents 2021 Annual Sustainable Growth Strategy and strategic guidance for implementation of the Recovery and Resilience Facility READ MORE ON EU LAW LIVE
The European Commission published its 2021 Annual Sustainable Growth Strategy, which launches this year’s European Semester cycle, as well as strategic guidance for the implementation of the Recovery and Resilience Facility.
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European Parliament insists EU must protect fundamental rights and the rule of law in Poland Thursday 17 September
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The European Parliament adopted a resolution on Thursday today calling on the Council of the European Union to take specic action to address grave problems in Poland concerning the functioning of the legislative and electoral system, the independence of the judiciary and the rights of judges, and the protection of fundamental rights.
In Kotilainen and Others v. Finland (application no. 62439/12) the European Court of Human Rights held that Finnish authorities failed to protect the lives of the victims of the 2008 school shooting in Kauhajoki, in breach of the right to life under Article 2 ECHR (but not the procedural aspect of that article concerning the investigation after the attack).
Friday 18 September
Thursday 17 September
Commission President Ursula von der Leyen presented the Commission’s plan, in her State of the Union address, to reduce EU greenhouse gas emission by at least 55% by 2030, compared to 1990 levels, in a bid to achieve the EU’s stated goal to become climate neutral by 2050.
The Governing Council of the European Central Bank decided in an opinion that there are ‘exceptional circumstances’ owing to the COVID-19 pandemic which justify allowing 115 eurozone central banks to temporarily exclude certain central bank exposures from the calculation of their leverage ratio until 27 June 2021.
Thursday 17 September
Commission proposes 55% cut in greenhouse gas emissions by 2030
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‘Protect health and environment from pharmaceutical pollution’ urges EU Parliament Friday 18 September
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The European Parliament approved a resolution urging the EU to take measures for the sensible use and disposal of pharmaceuticals over the whole life-cycle and greener manufacturing of more biodegradable pharmaceuticals, to protect the environment and public health.
Nº29 · SEPTEMBER, 19 2020
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European Ombudsman: no maladministration by EPSO discontinuing selection procedure owing to missed deadline for COVID-19 reasons
The EAW surrender procedure applies when sentencing has occurred in a third State and been recognised in the issuing Member State: AG Kokott
Friday 18 September
Friday 18 September
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The Ombudsman noted that EPSO informed applicants that if they did not book within the given period their application would be considered withdrawn. Although the applicant was overwhelmed by the situation caused by the COVID-19 outbreak, the situation was not unforeseeable or out of the applicant’s control, nor such that it was impossible to nd a solution.
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Advocate General Kokott delivered her Opinion in Minister for Justice and Equality v JR (Conviction by an EEA third State) (C-499/18), advising the Court of Justice that the EAW Decision and surrender procedure do apply in the case where the issuing Member State has recognised the sentencing judgment of a third State and was executing it under its own law (further to an international agreement between the Member State and the third State), subject to the respect for the fundamental rights of the person in question, and that refusals under Article 4(7)(b) must examine whether the preparatory acts were committed in a Member State.
Ministerial Declaration of the International Contact Group on Venezuela Friday 18 September
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The International Contact Group on Venezuela, devoted to promoting a common understanding and approach among key international actors on the situation in Venezuela and to foster a peaceful and democratic solution to the current crisis, met at Ministerial level by videoconference.
Analyses & Op-Eds Transfer of insolvent undertakings and The Commission’s evaluation of its verrestriction on transferee’s pension obli- tical competition law rules: a first glimpse at the upcoming revision gations By David Martínez Saldaña
By Martin Gassler
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Op-Ed examining the employment law TMD Friction ruling of the Court of Justice (joined cases C-674/18 and C-675/18) concerning transfers of undertakings in an insolvency context, in particular with respect to how to calculate pensions.
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Op-Ed on the European Commission’s recently published Staff Working Document that summarises the ndings of its almost two-year long evaluation of both the current Vertical Block Exemption Regulation 330/2010 and the Vertical Guidelines, providing a rst glimpse of what to expect from the next revision of the vertical rules.
Nº29 · SEPTEMBER, 19 2020
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The Future of the ‘Purely Internal Rule’: Two Cases to Watch Closely By Amedeo Arena
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Analysis on the recent Opinions by Advocates General Bobek and Szpunar in J&S (C-620/19), and in Bonver Win (C-311/19), two cases that might have a profound impact on the development of the doctrine introduced by the Court of Justice in 1979 known as the ‘purely internal rule’.
Library - Book Review
By Giuseppe Abbamonte
GIOVANNI PITRUZZELLA, ORESTE POLLICINO
DISINFORMATION AND HATE SPEECH: A EUROPEAN CONSTITUTIONAL PERSPECTIVE
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A book that has an ‘engaging and informative style’ that ‘may appeal not just to legal scholars and practitioners but also to ordinary readers who take an interest in the regulatory challenges and threats posed by the internet and possible policy responses’.
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