The Week Nº20

IN-DEPTH:

A new model for the EU judiciary: decentralising preliminary rulings as a paradoxical move towards the constitutionalisation of the Court of Justice

Sara Iglesias and Daniel Sarmiento

Socialist Legacy of (In)dependent Judiciary: Should the Court of Justice Follow the Opinion of AG Pikamäe in Hann Invest?’

Nika Bačić Selanec and Davor Petrić

The challenge of global governance of Artificial Intelligence: between the UN Resolution and ‘Brussels Effect

Gianluca Fasano

The Court of Justice upholds the validity of the Firearms Directive in C-234/21

Niels Kirst

The UK Supreme Court ‘seriously compromised the EU legal order’: the European Court of Justice judgment in Commission v UK (Case C-516/22)

Panos Koutrakos

Access to national supreme courts and preliminary ruling: are the principles of equivalence and effectiveness enough to protect the keystone of the EU judicial architecture?

Mariana Martins Pereira

The cost of consumer rights. Bank compensation for early repayment in mortgage credit contracts (VR Bank Ravensburg-Weingarten, C-536/22)

Filippo Morello

Unsilencing democracy: the EU’s anti-SLAPP Directive

Eduardo Silva de Freitas

THE LONG READ:

Identity of the European Union and identities of the Member States: which relationship?

Giovanni Pitruzzella

HIGHLIGHTS OF THE WEEK

IN-DEPT H

A new model for the EU judiciary: decentralising preliminary rulings as a paradoxical move towards the constitutionalisation of the Court of Justice

Sara Iglesias and Daniel Sarmiento

On the 19 March 2024, the Council gave its final assent to the Regulation on the Reform of the Statute of the Court of Justice, already passed by the EU Legislature on 24 February. The reform is now a reality: the Court of Justice has entered a new phase in which its monopoly over the preliminary ruling procedure – the most paradigmatic and crucial piece of the peculiar EU judicial system – has come to an end.

Far from being a mere technical readjustment, this reform constitutes a milestone in the incremental process of transformation of the EU judicial architecture. Formally inserted in the structures laid down by the Treaty of Nice, the partial transfer of jurisdiction over preliminary rulings to the General Court is rather a direct consequence of the 2015 reform through Regulation 2015/2422, when the doubling of size of the General Court was decided and the Civil Service Tribunal dismantled. The new reform, generally perceived as a collateral effect of the controversial 2015 reform, brings the Court into unchartered territory and places the new inter-court relations in the spotlight. The transformative effect of this reform reaches well beyond the transfer of jurisdiction over the modest six ‘specific areas’ – VAT, excise duties, the Customs Code, tariff classification of goods, compensation and assistance to passengers and the system for greenhouse gas emission allowance trading. It puts forward a new model for the EU judicial structure that is not uncontested, marking at the same time the resuscitation of the overall debate on the future of the EU judicial system.

The decentralisation of the preliminary ruling procedure comes moreover hand in hand with unexpected but significant developments towards the (institutional) democratisation of participation in preliminary ruling procedures, and most strikingly, towards judicial openness. First, the new drafting of Article 23 of the Statute expands the right to participate in preliminary ruling proceedings to the Parliament, the Council and the European Central Bank beyond the cases where they have adopted the act in issue. Second, and most strikingly, it includes a huge development in terms of transparency: the automatic ex officio publication online of all statements or written observations, unless objections are raised (the future implementation of this development through the rules of procedure will however be likely subject to a narrow interpretation (see, particularly the Declaration by some Member States on this matter).

The final text of the reform of the Statute brings generally no great surprises in the front of transfer of jurisdiction when compared with the overall design devised by the request of the Court of Justice tabled in November 2022 (see, on that request, here and here). The final text of the Regulation nonetheless adds important elements which

enhance the consistency and provide for clarification on the practical operation of the reform envisaged by the Court. With an important input from the European Parliament, the reform Regulation offers a more precise portrayal of the role of the Advocate General in the General Court; makes the procedure for allocation of cases more explicit; expands the scope of Article 54 of the Statute to preliminary rulings; and strengthens democratic dialogue on the future of the judicial system as well as the monitoring tools following up the reform, inter alia. It also makes relevant precisions regarding the most controversial point of the reform: the application of the ‘exclusivity criterion’ that shall guide the identification of the cases appertaining to the specific areas that have to be transferred to the General Court. The new Article 50b of the Statute makes explicit that the Court of Justice will retain jurisdiction for preliminary rulings that ‘raise independent questions relating to the interpretation of primary law, public international law, general principles of Union law or the Charter’. Further clarification comes from the letters dated 27 February 2024, Presidents Lenaerts and van der Woude, with the necessary draft amendments to the Rules of Procedure of the Court of Justice and the of the General Court, which will now need approval by the Council according to Article 253 TFEU.

All in all, the impact of the reform will only be dilucidated, as it is obvious, through its practical application, as the many clarifications inserted do not completely dispel all the crucial difficulties and uncertainties in the allocation system and open new questions relating to the interpretation of those clarifications themselves – for example, will the reference to ‘independent questions relating to … primary law’ now exclude the jurisdiction of the General Court over preliminary rulings of validity? What is the meaning of ‘independent question’? But in any case, the new reform marks the acceleration of the process of transformation of the EU judiciary, which will be accompanied by institutional and academic scrutiny and debate.

The new reform favours a model based on two main choices: focus on productivity and reliance on internal decentralisation. First, it buttresses the broad interpretative function of EU Courts and its centralisation in Luxembourg. After having discarded alternative options that may have permitted to limit the number of references (as explained by Bobek) the Court has surrendered its monopoly over the preliminary ruling procedure in order to ensure that the productivity of EU Courts matches the unfettered interpretative demand by national courts without compromising timely adjudication. This choice consolidates the self-perception of EU Courts not as mere guardians of uniform interpretation, but also as true adjudicators within the preliminary ruling procedure, which represents itself a crucial piece for the guarantee of the right to an effective remedy in the supranational judicial system. Second, sustaining the productivity of the massive interpretative factory in Luxembourg comes at the cost of the internal reorganisation through decentralisation of the – so far – most centralised procedure: the preliminary ruling procedure (leaving infringement proceedings essentially as the only mono-court procedure before EU Courts, and that, for political, rather than structural or legal, reasons).

The picture of the EU judiciary that ensues portrays a Court of Justice with an amplified constitutional flavour and a General Court with a consolidated claim to general jurisdiction. Indeed, the reform also consolidates the trend towards a true generalisation of the jurisdiction of the General Court (honouring its name), bringing with it not only internal specialisation by material areas, but also by procedures. In between these two developments, the

preliminary ruling procedure is also changing skin, losing some of its constitutional coating as well as seeing its function as ultimate vehicle for uniform interpretation significantly morphed into a more relativistic endeavour.

The reform entails an explicit endorsement of the constitutionalisation of the Court of Justice. This development happens however through an indirect exercise of negative determination: rather than identifying the issues of constitutional relevance that shall be entrusted to the top level, the reform devises a mechanism to progressively peel off layers of non-constitutional significance. It does so not only through the ex-ante criteria used by the Court to identify the ‘specific areas’ to be transferred, but also ex-post, by ensuring that only cases fully encapsulated within those areas are transferred. The final text of the reform Regulation enhances this approach by inserting explicit safeguards that ensure that the General Court focuses on statutory interpretation, by pining down the ‘specific areas’ to specific instruments of secondary law (see, e.g., recitals 9 and 10), whereas the Court of Justice retains cases of constitutional significance most of all, by excluding the transfer of cases involving ‘independent questions’ concerning Treaty interpretation, the Charter or general principles (recital 13 and Article 50b).

This mechanism of determining constitutional jurisdiction by way of proxy is not entirely new. The creation of the Court of First Instance did not entail the complete transfer of jurisdiction over actions for annulment. Instead, specific criteria were devised in order to serve as shortcuts to identify annulment actions of ‘constitutional’ nature, mostly relying on the identity of the claimants, but also, on the subject matter, leading to a quite complex web of rules, exceptions, and exceptions to the exceptions through the combination of what are today Article 256(1) TFEU and Article 51 of the Statute. This hair-splitting exercise is bound to be reproduced in the field of preliminary rulings due to the difficulty to establish general abstract criteria that would define the content of a constitutional jurisdiction.

The consolidation of the constitutional role of the Court of Justice brings with it, paradoxically, the deconstitutionalisation of at least part of the procedure that most paradigmatically has awarded it its constitutional role. Preliminary rulings have been traditionally endowed with a constitutional flavour, being modeled after the Italian question for constitutionality. However, it is nowadays apparent that the broad scope of EU law together with the technical nature of a big part of it makes of the preliminary rulings a rather diverse procedure that can serve as the vehicle of highly detailed technical questions on the application of the law, and at the same time, of the most fundamental issues of principle (often, even, in the same case!). The reform serves as a first attempt at decanting some of the non-constitutional layers of preliminary ruling jurisdiction. At a time when a material constitutional core is emerging from the case-law of the Court, a differentiation between preliminary rulings will emerge, determining their treatment on the basis of their constitutional nature.

There is an inevitable sentiment of undergoing a ‘test phase’: the specific areas transferred will serve as a controlled laboratory to assess the performance of the decentralisation of the preliminary ruling procedure and to refine its different components, as well as the finetuning of the material impact of the new correlation between the two EU courts amongst themselves and with their national interlocutors. It is to be expected that the success of the system will be sanctioned with the confirmation of its potential for generalisation. From this point of view, it

only makes sense to scale up the assessment of the current reform as a generally applicable solution to a wide array of ‘specialised areas’, and to factor in the inevitable dissonances that may occur. From this vantage point, the EU judicial system (encompassing both EU and national courts) may be sending signals of ripeness: what the reform seems to suggest is the trust in a complex and multilayered judicial system that has come of age, in all its dimensions. The Court of Justice is ready to let go, with caution. The General Court is entrusted with the final word in specific areas – also through the parallel move towards the generalisation of the filtering system of appeals. National judges, who do not need to be encouraged any longer to participate in supranational judicial dialogue, are expected to loyally cooperate with all the components of the EU judicial system, as litigants do. Litigants and the EU law community in general are deemed prepared to tackle change, complexity, and a certain level of dissonance – as is the case in complex national legal systems.

The big question Is how stable and functional this model will be in order to allow for the EU judicial system to grow around it. The challenges are multiple, and the stakes are high. The devolution of the jurisdiction of the Civil Service Tribunal also makes visible the flexibility of the evolution of the EU judicial system: there are no irrevocable choices.

Sara Iglesias is Professor of EU Law at the Universidad Complutense of Madrid and In-Depth/Weekend Edition editor at EU Law Live.

Daniel Sarmiento is Professor of EU Law at the Universidad Complutense of Madrid and Editor-in-Chief of EU Law Live.

SUGGESTED CITATION: Iglesias, S. and Sarmiento, D; “A new model for the EU judiciary: decentralising preliminary rulings as a paradoxical move towards the constitutionalisation of the Court of Justice”, EU Law Live, 08/04/2024, https://eulawlive.com/insight-a-new-model-for-the-eu-judiciarydecentralising-preliminary-rulings-as-a-paradoxical-move-towards-the-constitutionalisation-of-the-court-of-justice-by-sara-iglesias-a/

Socialist Legacy of (In)dependent Judiciary: Should the Court of Justice Follow the Opinion of AG Pikamäe in Hann Invest?’

Nika Bačić Selanec and Davor Petrić

Grand Chamber of the Court of Justice is within the next few months expected to deliver a judgment in Hann Invest (Joined Cases C-554/21, C-622/21 and C-727/21). In the first preliminary reference on the state of rule of law and independence of the judiciary in Croatia, the referring national court questioned whether the Croatian mechanism for ensuring consistency of case-law of second-instance national courts and the Supreme Court complies with Article 19(1) TEU. The Opinion of AG Pikamäe in the case was issued in October last year. The AG instantly questioned the admissibility of ‘systemic’ rule of law questions under Article 267 TFEU, which has already been neatly analysed (and refuted) by Sarmiento and Iglesias here, so we will not go any further into it. Our concern with Hann Invest deals with the substance of the Opinion. The AG considered that the Croatian mechanism strikes an appropriate balance between the independence of individual judges, on the one side, and the legitimate claim for coherence of case-law, on the other side, grounded in the right of all parties to equal application of the law. Despite the AG’s benevolent analysis of the mechanism, it would be preferable that the Court proceeds with greater caution. Putting the praise of uniform application of the law aside, a more contextual approach in legal analysis of the Croatian coherence mechanism immediately demonstrates how the nature of this instrument is much less equitable than what the AG’s Opinion would suggest. Far from being an ideal compromise, what Hann Invest is dealing with is a highly controversial model for ensuring judicial obedience – a relic of the socialist regime which stands at odds with the rule of law value of truly independent judicial branch, and prevents national courts from fulfilling their ‘European mandate’ of providing effective judicial protection under EU law.

Socialist legacy

The Croatian uniformity mechanism, in short, entails collegiate judicial decision-making in behind-the-curtain, and extra-procedural meeting of all judges sitting in a court (or its specialised sections), delivering ‘legal positions’ on ‘abstract’ interpretation of the law which, in turn, binds individual judges deciding particular disputes. In case of disobedience, the mechanism authorises a so-called ‘registrations judge’, operating outside the deciding judicial formation, to block the delivery of any ruling conflicting the position of a court’s prevailing majority. As evident from its very structure, the mechanism denies all procedural guarantees that generally underpin the right to a fair trial, lacking any transparency in the process of decision-making, any legal remedy, constitutional review, the parties’ rights of standing, or any rules on publication of the decision, to name a few most obvious culprits. All serious constitutional regimes would for such (un)judicial operation instantly raise a red alert. History of the instrument, however, tells its cautionary tale.

The overall idea of authorising judicial ‘meetings’ to deliver binding ‘legal positions’ was originally envisaged as a tool of judicial administration in the communist era to implement the idea of socialist collectivism (see here). The system was designed as part of authoritarian judicial governance in which ‘democratic-decisionmaking’ by a majority vote was used to provide false legitimacy to programmes of ruling judicial élites, or to disincentivise and marginalise all dissidents by their peers simply ‘out-voting’ them. Once, judicial élites answered to the communist parties, and were most often part of their top hierarchies. Today, the mechanism may not have a direct political affiliation, but still grants extensive powers to court administration and top levels of judiciary. By its very structure and purpose, it fails to provide sufficient guarantees of judicial independence and impartiality, free from influences of interest groups from inside (and outside) the judicial system. By facilitating the contrary –internal dependence of judiciary, such a mechanism is truly an anomaly to the liberal ideal of the rule of law and the separation of powers. In constitutional democracies, coherence of case-law is not ensured though behind-the-curtain judicial law-making with weak pretences of abstract decision-making, determining how supposedly autonomous judges should decide individual disputes. Rather, it is ensured through judicial remedies, while the law is developed by judges interpreting its meaning evaluated in light of concrete facts of individual cases.

The controversies at stake surpass the mere Croatian context. Its uniformity mechanism is a resilient legacy common to post-socialist judiciaries, and a prime example of ‘authoritarian legal culture at work’. Many CEE countries have since the times of their communist past continued to use similar judicial interpretational statements to ensure uniformity of case-law, in one variant or another. Some of these countries have (recently) undertaken efforts to dispose of such mechanisms themselves – by legislative amendments, such as Estonians, or via constitutional courts, like the Latvians and Lithuanians. In contrast, the mechanism is still alive and well in Hungary. Keeping in use an instrument of ensuring judicial obedience is both convenient and telling, given the current state of illiberalism in the country.

It all fits into a bigger picture. Despite becoming EU members, post-socialist countries generally still suffer from ‘weak democratic and rule of law tradition’. In these systems, a low level of legal and political culture facilitates resilience of old patterns, maintaining packed and massive systems of judiciary operating in a bureaucratic mode under hierarchical guidance of a small and closely tied judicial élite. The system has certainly evolved during the past few decades, but the essence of its operating mode remained the same. While formally relinquishing authoritarianism and adopting constitutionalism, post-socialist judiciary has very eagerly internalised the need to separate judiciary from other branches of government, pushing the ideal of judicial self-government to the extreme. The entire concept has been misused, turning it into complete judicial isolationism, which ultimately disables judiciary to meaningfully contribute to the rule of law and participate in the system of checks and balances (see here). The authoritarian discourse and pattern survived, they are now just following different leaders. The ones from the inside, presiding over their ‘fortress of independence’.

Recalling the basics of EU law

Aside from suppressing true nature of the instrument, our second concern with the position adopted in the AG’s Opinion is that it sidelines the central tenets of EU law which depend on national courts independently fulfilling

their ‘European mandate’. In a nutshell, the positive assessment hinges on a single argument – a difference between ‘interpretation’ and ‘application’ of the law – an evident legal fiction to all who are familiar with standard functioning of the judicial role. In key places of his Opinion, the AG suggests that if this distinction is accepted, the Croatian mechanism should not be considered as contrary to judicial independence and fair trial. As judicial meetings engage only in abstract interpretations of the law, the process does not involve applying the law to concrete facts of individual disputes. And since interpreting the law is ‘by its nature, the work of a judge’, parties have no influence on it anyway. Procedural fairness remains intact.

Apart from relying on this superficial distinction, the Opinion does not provide any other argument that could speak in favour of the Croatian mechanism. It also does not mention any arguments which directly challenge the use of this mechanism from the perspective of EU law and, in particular, its fundamental principles that determine the status of national courts in EU judicial system.

As is well known, to be able to perform their mandate under Article 19(1) TEU and ensure effective judicial protection of EU law, national courts must be independent. After ‘Portuguese judges’, it is clear that they must remain independent all the time, and not only when they are adjudicating cases on EU law on the merits. For national courts to be able to enforce EU law independently and autonomously, national law cannot fully or partially prevent them or make it more difficult to give EU law full effect. This is what Simmenthal stands for. National procedural law or judicial practice cannot be set up to prevent national courts – not even temporarily – from doing everything necessary to ensure full effectiveness of EU law at the exact moment of its application. And this is indeed what the disputed Croatian mechanism enables. It allows the ‘registrations judge’ to block the ruling of the deciding judicial formation and prevent its delivery to the parties; and eventually, it allows the ‘judicial meeting’ to adopt behind-the-curtains a ‘legal position’ which essentially replaces the deciding judges’ ruling. Such a mechanism is at striking odds with the essence of tasks that Article 19(1) TEU entrusted to national courts. The way out of this conclusion simply cannot be to say that the Croatian mechanism does not prevent deciding judges from making a reference for a preliminary ruling, which the AG takes as a mitigating circumstance. Quite straightforwardly, well-established case-law insists that national courts should not be forced to submit a reference to the Court of Justice before being able to ensure full effectiveness of EU law and act as ‘EU courts’ (recall Kücükdeveci).

Conclusion

The AG’s opinion in Hann Invest fails to thoroughly scrutinize the Croatian uniformity mechanism in light of the liberal ideal of judicial independence, including its internal aspect. It is surprisingly one-dimensional, ignoring the central tenets of EU law which depend on national courts independently fulfilling their European mandate. It also sidelines the true nature of this controversial mechanism that is a relic of Yugoslavian socialist regime, and was designed to ensure not judicial independence or equal application of the law, but judicial obedience. To that extent, Hann Invest touches into the core of post-socialist baggage common to many Member States, a legacy of the EU’s ‘third legal tradition’ that has never yet been confronted by the Court so directly. Resilience of similar

judicial patterns should make us question to what extent have the EU’s latest editions from CEE truly internalised the ‘common’ value of the rule of law, and can Article 19(1) TEU help us deal with it. Remaining faithful to the ideal of the rule of law from the ‘Portuguese judges’ line of case-law requires from the Court consistency in applying the standard equally to all, particularly when dealing with relics from the Member States’ socialist past. That might be a Pandora’s box just waiting to be opened. Still, we are eager to see the lid come off.

For a full version of the argument presented in this op-ed, see here.

Nika Bačić Selanec is Assistant Professor at the Department of European Public Law, University of Zagreb – Faculty of Law, and holder of the Jean Monnet Module on ‘EU Constitutional Law and Methodology’.

Davor Petrić is Postdoctoral Researcher and Senior Assistant at the Department of European Public Law, University of Zagreb –Faculty of Law.

SUGGESTED CITATION: Bačić Selanec, N. and Petrić, D.; “Socialist Legacy of (In)dependent Judiciary: Should the Court of Justice Follow the Opinion of AG Pikamäe in Hann Invest?”, EU Law Live, 11/04/2024, https://eulawlive.com/op-ed-socialist-legacy-of-independent-judiciary-should-thecourt-of-justice-follow-the-opinion-of-ag-pikamae-in-hann-invest-by-nika-bacic-selanec-and-davor-petric/

The challenge of global governance of Artificial Intelligence: between the UN Resolution and ‘Brussels Effect

Gianluca Fasano

The UN General Assembly on 21 March adopted a landmark resolution on the promotion of ‘safe, secure and trustworthy’ artificial intelligence (AI) systems that will also benefit sustainable development for all.

It represents the first time the Assembly has adopted a resolution on regulating the emerging field and follows the position expressed by the UN Secretary-General stressed that global oversight of emerging AI technology should be based on the UN Charter’s core principles and ensure full respect for human rights.

While there is broad agreement on principles such as reliability, transparency, accountability and the ability to shut down AI applications, global oversight is needed to prevent incoherence and gaps.

This approach highlights a point that seems to be shared: global phenomena, such as the Internet, forms of artificial intelligence, information synthesised by large language models, cannot be regulated except with global tools. We need a united, sustained and global response, based on multilateralism and the participation of all stakeholders.

And this is the merit of the resolution which, in fact, is inserted into a scenario that some countries attest to different ideological positions. The European Union considers markets, left to themselves, incapable of producing optimal results, so regulation is necessary to protect fundamental rights in the digital age. The United States follows a techno-libertarian vision that emphasises the primacy of the free market, freedom of speech and freedom of the Internet. China, which has already provided itself with rules for the management of generative artificial intelligence services since 15 August 2023, wants AI systems to conform to the fundamental values of Chinese socialism.

These different political positions benefit from a fundamental feature of the market for new technologies, that of being a single market, free of geographical barriers and therefore global.

For this reason, the different political visions express rules that remain only formally limited by the borders of national States or supranational institutions, such as the European Union, since regulating the digital space (global market) means to dictate rules outside geographical boundaries. The regulatory power, therefore, is a tool to protect individual digital sovereignties in view of the conquest of global leadership.

The phenomenon has been described, with reference to the EU data protection regulation, with the term ‘Brussels Effect’, understood as a unilateral power to regulate global markets without the need to resort to international

institutions or to seek the cooperation of other nations. Through the aforementioned apparatus of rules, aimed at governing the precious internal market of the Union, the EU forces foreign companies, which aim at that market, to follow European standards; generating a large boost to compliance by extra-territorial actors. European legislation is thus able to assert a European digital sovereignty even outside its borders, going to place itself in open opposition to the overseas approach.

And that the EU has the objective of presenting itself on the global scenario as a leader in the regulation of digital innovation to balance the power of technology companies overseas that, with their innovative products and services, are reshaping the world, is not questioned: ‘Only common action at Union level can also protect the Union’s digital sovereignty and leverage its tools and regulatory powers to shape global rules and standards’ (2(2) AI ACT proposal).

Expanding one’s perspective on such a scene, we can understand the importance to attribute to the resolution: on the one hand, the awareness of geopolitical tensions over the regulation of a market considered unique at this historic moment has led more than 120 Member States to approve the resolution. Multilateralism, therefore, is still regarded as an effective antagonist of existing tensions in the field of digital sovereignty.

On the other hand, it is important that the resolution has been presented by the United States, confirming the growing interest of the Biden administration in gaining leadership in the global governance of AI.

For the sake of completeness of analysis, we cannot overlook the nature of the resolutions of the General Assembly which, unlike those of the Security Council, are not binding. They represent a manifesto of what is common global thinking on a given theme. The goal of the General Assembly resolution is more to establish common principles on how to manage AI. For this reason, the resolution encourages local laws concerning the regulation of artificial intelligence: ‘Encourages all Member States, where appropriate, in line with their national priorities and circumstances and while implementing their distinct national regulatory and governance approaches and frameworks, and, where applicable, other stakeholders to promote safe, secure and trustworthy artificial intelligence systems’ (Art. 6 resolution A/78/L.49).

The resolution defines a framework within which each State can move to create rules, so as to concretize the guidelines of the General Assembly.

We cannot attribute to the resolution a force in contrast to the ‘Brussels Effect’. However, if we analyse the content of the resolution we can trace those same Principles of ‘transparency, predictability, reliability and understandability throughout the life cycle of artificial intelligence systems that make or support decisions impacting end-users, including providing notice and explanation, and promoting human oversight’ (Art. 6(k) resolution) of which there is trace in the regulations of the European Union in the digital field.

Yet, global oversight in the field of AI systems is to be hoped for, since it would mean that one country or group of countries cannot dominate over others and that geopolitical tensions, existing due to the concentration of AI systems in a few countries and companies, will be reduced through international cooperation on AI governance.

The Week

Gianluca Fasano, Technologist Director at the National Research Council (ISTC – CNR).

SUGGESTED CITATION: Fasano, G.; “The challenge of global governance of Artificial Intelligence: between the UN Resolution and ‘Brussels Effect”, EU Law Live, 11/04/2024, https://eulawlive.com/op-ed-the-challenge-of-global-governance-of-artificial-intelligence-between-the-un-resolution-andbrussels-effect-by-gianluca-fasano/

The Court of Justice upholds the validity of the Firearms Directive in C-234/21

Niels Kirst

In a recent judgment, the Court of Justice of the European Union (the Court) has upheld the validity of the Firearms Directive 2017/853 and ruled that Member States have the discretion to implement transitional regimes for holders of semi-automatic firearms converted to fire blanks, even after their prohibition. The ruling asserts that the objective of ensuring public safety and security for Union citizens remains intact despite holders of converted firearms being permitted to maintain previously granted authorisations. Moreover, the Court rejected the premise of the preliminary ruling coming from the Cour constitutionelle (Belgium Constitutional Court) by highlighting that ‘[…] the premiss on which the question is based, […], is incorrect’ (para. 67 of the judgment).

The case touches upon firearms regulation in the European Union (EU), which is a complex and sensitive issue that aims to balance public safety and security concerns with the rights of EU citizens to own and hold firearms (for a holistic analysis of firearms regulation in the EU, see here). The EU has established a framework for firearms regulation, but Member States retain some discretion in the implementation (for the codified version of the previous three Firearms Directives, see here). In Défense Active des Amateurs d’Armes and Others v Conseil des ministres (C-234/21), a lack of transitional agreement for firearms converted to firing blanks occupied the Court.

Background

A legal dispute arose between the Association Defence Active des Amateurs d’Armes ASBL (DAAA) and two Belgian citizens on one side and the Conseil des ministres (Council of Ministers, Belgium) on the other, regarding the reform of the loi sur les armes (Law on weapons), which came into effect in 2019 and transposed the latest EU Firearms Directive 2017/853 into Belgium law. The Belgium law prohibited certain types of semi-automatic weapons that had been converted to fire blanks and were previously sold freely in Belgium until early June 2019. Consequently, holders of these converted weapons were no longer permitted to retain them, as they were now considered prohibited firearms. In contrast, individuals who lawfully purchased and registered genuine semiautomatic firearms before 13 June 2017 were granted a transitional regime allowing them to keep their weapons. The DAAA alleged that the Belgium law infringed several provisions of the Belgian Constitution, Art. 49 of the EU Charter of Fundamental Rights (Charter) and the principle of protecting legitimate expectations. In 2021, the Belgian Constitutional Court decided to halt the proceedings and issued a preliminary reference to the Court on the validity of Art. 7 (4a) of the Firearms Directive.

The case concerns acquiring and possessing semi-automatic firearms converted to firing blanks. On the one hand, semi-automatic weapons converted to firing blanks used to be sold freely in Belgium before 2019. After

transposing the Firearms Directive into Belgian law, persons who had acquired such weapons became the owners either of a prohibited weapon or of a weapon which, in the absence of the required authorisation, could not be regularised since authorisation had to be obtained prior to the acquisition of the weapon. On the other hand, and by contrast, holders of original (unconverted) semi-automatic firearms who had lawfully acquired and registered them before 13 June 2017 benefit from transitional arrangements allowing them to keep those firearms. This led to the claim of unequal treatment before the law. The issue centred on whether Art. 7(4a) of Directive 91/477 violates the principles of equality before the law (Art. 20), non-discrimination (Art. 21), and the right to property (Art. 17) of the Charter.

The dispute’s background is the latest reform of firearms regulation in the EU, enacted in 2017. Before that, there were already two other Firearms Directives. First, Directive 91/477 was adopted in 1991 and sparked by the creation of the Single Market. This first Firearms Directive aimed to establish common rules for controlling the acquisition and possession of firearms within the newly established European Single Market. An amended second Firearms Directive entered into force in 2008. This legislation, in the form of Directive 2008/51, was sparked by a surge of weapons on the black market following the Kosovo War. It introduced additional provisions on deactivated firearms to prevent their reactivation for criminal purposes. Finally, the most significant overhaul of firearms regulation came with Directive 2017/853. It was adopted in response to the Paris terror attacks in 2015. The 2017 Directive recategorised firearms into different classes, including firearms for civilian use, firearms subject to authorisation, and prohibited firearms. The classification depends on factors such as calibre, action type, and intended use. Category A firearms are prohibited except for certain types of individuals; Category B firearms need an ‘authorisation’, and owners of Category C firearms need to declare their ownership but do not need authorisation. This classification was also the origin of the dispute, as semi-automatic firearms converted to firing blanks were categorised as Point 9 of Category A without the possibility of allowing for transitional arrangements by the Member States.

Specifically, Art. 7(4a) allowed Member States to confirm, renew or prolong authorisation for firearms under Points 6, 7 or 8 of Category A, with a transitional arrangement for owners registering their firearms before 13 June 2017. Art. 7(4a) of Directive 2017/853 states the following:

‘Member States may decide to confirm, renew or prolong authorisations for semi-automatic firearms classified in point 6, 7 or 8 of category A in respect of a firearm which was classified in category B, and lawfully acquired and registered, before 13 June 2017, subject to the other conditions laid down in this Directive. […].’

The article omitted transitional arrangements for weapons listed under Point 9 of Category A, such as semiautomatic firearms converted to firing blanks. The applicants argued that this unequal treatment infringes on their right to property, equality before the law, and non-discrimination. Therefore, the referring Court sought clarity on whether Art. 7(4a) violates the right to property, equality, non-discrimination, and the protection of legitimate expectations under the Charter. Notably, those questions regarding Art. 7(4a) were not addressed in a previous challenge of the Firearms Directive in Czech Republic v Parliament and Council (C-482/17) (for an analysis of the case, see here).

The AG’s Opinions

In two Opinions (Opinion of November 2022 and Opinion of September 2023), after a referral to the Grand Chamber and a subsequent reopening of the oral proceeding, Advocate General Campos Sánchez-Bordona held that Art. 7(4a) of Firearms Directive 2017/853 infringed on Art. 17 and 20 of the Charter and that it fell to the EU legislature to provide for compensation for the owners of weapons that had to be impounded (for an analysis of the AG’s Opinions, see here). However, the Court did not follow the AG’s Opinions and took a very different view on the case and the Belgian situation.

The Court’s Judgment

In the proceedings, the DAAA argued that the situation involves differential treatment between individuals possessing firearms falling into the categories of A.6 to A.8 and A.9. Additionally, they contended that the Firearms Directive, which the Belgian reform aimed to implement, violated the right to property and fundamental principles of equal treatment, non-discrimination, and protection of legitimate expectations. In response to this, the Belgium Constitutional Court, hearing the case, questioned whether Art. 7(4a) of the Firearms Directive is invalid due to the absence of authorisation for Member States to establish transitional arrangements for individuals who lawfully acquired and registered a semi-automatic firearm converted solely for firing blanks before 13 June 2017.

In its ruling, the Grand Chamber rejected this interpretation and upheld the validity of Art. 7(4a) of the Firearms Directive, affirming that it does not violate the right to property or the principles of equal treatment, nondiscrimination, and protection of legitimate expectations.

First, the Court rightly assessed that firearms in category A.9 are less dangerous than those falling in category A.6 to A.8. ‘[…] firearms satisfying the criteria in category A.9 appear to present a less immediate danger than those falling exclusively within categories A.6 to A.8, in that those categories are immediately capable of firing bullets or projectiles, whereas the former only detonate and expel gases, so that the former pose a current risk while the others pose only a potential risk in the event of further conversion (para. 59).’ Therefore, the Firearms Directive still achieves its aim of ensuring public safety and security of Union citizens when allowing holders of firearms of category A.9 to maintain previous authorisations.

Second, contrary to the DAAA’s assertion, the provision may empower Member States to maintain previous authorisations for all relevant semi-automatic firearms, including those modified for firing blanks: ‘[…] it does not follow from any of the recitals of Directive 2017/853 that weapons falling within category A.9 are excluded from those categories or from that scope (para. 52).’ According to Recital 20 of the Firearms Directive, category A.9 was mainly established to ensure that firearms converted to firing blanks fell within the scope of the Directive, not to regulate them harsher than non-converted firearms.

Third, the Court, therefore, hinted that it was upon the Belgium legislator reforming the loi sur les armes to establish transitional agreements or maintaining previous authorisations for firearms falling into category A.9. ‘Article 7(4a) […] must be interpreted as authorising Member States to exercise the power which it provides for all semi-automatic firearms in categories A.6 to A.8, including those falling at the same time within those categories and category A.9 (para. 66).’ Therefore, the premiss on which the Belgium Constitutional Court based its question, namely that converted firearms do not fall under Art. 7(4a) is incorrect. Instead, an interpretation that includes category A.9 firearms in this article is adequate.

Comment

In this case, the Court of Justice takes a wide and purposive interpretation of Art. 7(4a) of the Firearms Directive 2017/853 and rejects the textual interpretation that the applicants followed. According to the Court, the error is not on the side of the EU legislature but on the side of the Belgian legislature, which failed to ensure that persons who have lawfully acquired such a weapon under the old system can comply with the new rules.

According to a general principle of interpretation of EU law, which the Court highlighted in its judgment, ‘[…] an EU act must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with EU primary law as a whole and, in particular, with the provisions of the Charter (para. 35).’ Therefore, an interpretation of Art. 7(4a), which does not go against any of the rights provided in the Charter, must prevail. The Belgian Constitutional Court is now tasked with this interpretative finding and must determine whether the Belgian loi sur les armes can still stand, given that it does not provide for a transitional regime or for maintaining previous authorisations for firearms holders of type A.9. However, this will be a question of Belgian constitutional law, not EU law.

This legal conundrum between EU and Belgian law could have been avoided if there had been closer cooperation between the Belgian authorities and the European Commission (Commission) and when transposing Firearms Directive 2017/853 into Belgium law. The Commission could have advised Belgium authorities that Art. 7(4a) includes the possibility of establishing a transitional regime for firearm holders of category A.9. However, whether this error was on the side of Belgium or the EU authorities is a hypothetical question as the Court has now settled the case.

Dr. Niels Kirst is Assistant Professor of European Law, Dublin City University.

SUGGESTED CITATION: Kirst, N.; “The Court of Justice upholds the validity of the Firearms Directive in C-234/21”, EU Law Live, 08/04/2024, https://eulawlive.com/op-ed-the-court-of-justice-upholds-the-validity-of-the-firearms-directive-in-c-234-21-by-niels-kirst/

The UK Supreme Court ‘seriously compromised the EU legal

order’: the European Court of Justice judgment in Commission v UK (Case

C-516/22)

Panos Koutrakos

Introduction

More than four years after the United Kingdom had left the European Union, in Commission v UK (Case C-516/22) the Court of Justice held that the UK Supreme Court (UKSC) ‘seriously compromised the EU legal order’ (para. 87): by handing down the Micula judgment, the UKSC misinterpreted and misapplied Article 351 TFEU, violated the duty of cooperation under Article 4(3) TEU, failed to refer to the Court of Justice under Article 267 TFEU, and infringed the duty laid down in Article 108(3) TFEU. This Op-ed will examine the first three grounds.

The significance of the judgment is threefold. First, it illustrates the long arm of EU law which may extend beyond Brexit. Second, it adds yet another piece in the developing and bold case-law that originates in Achmea (Case C-284/16) and extends the scope of EU law at the expense of investor-State dispute settlement rules laid down in international law. Third, it adds to the very limited case-law (Commission v France, Case C-416/17) that finds a court of last instance to have violated the principle of acte clair

The factual and legal framework

While the UK left the EU on 31 January 2020, EU law was applicable in the UK until 31 December 2020 (Article 127(1) of the UK-EU Withdrawal Agreement). During that period, the Court of Justice had jurisdiction to give preliminary rulings on requests from UK courts (Article 86 of the UK-EU Withdrawal Agreement).

In the Micula judgment (of 19 February 2020), the UKSC ordered the enforcement of the Micula v Romania arbitral award (‘the Award’) that had been delivered in 2013 under the ICSID Convention. In a 2015 Decision (‘the 2015 Decision’), the Commission had found payment of the Award by Romania to amount to State aid which would be incompatible with Articles 107-8 TFEU. The Decision was annulled by the General Court in European Food SA and Others v Commission (Cases T-624/15, T-694/15 and T-704/15) which was under appeal at the time of the UKSC Micula judgment (the Court of Justice set aside the General Court judgment in Commission v European Food and Others (Case C-638/19 P)).

Judgment by default

The judgment was given by default, under Article 41 of the CJEU Statute, as the UK refused to participate in the proceedings and did not lodge a defence, even though it was invited twice to do so.

The decision of the UK Government not to engage with the Court of Justice illustrates a narrow-minded approach to the interactions of the UK with the EU. It also did a disservice to the UKSC: rather than defending the judgment of its most senior judges, the UK Government succumbed to the parochial view of the Court of Justice as a monster with which any interaction would be politically toxic.

The main threads of the judgment

There are three main threads that underpin the line of reasoning of the judgment. The first is about Article 351 TFEU: by enabling Member States to override their EU law obligations in order to comply with obligations they assumed under international agreements concluded prior to their accession to the EU, that provision introduces an exception from the principle of primacy of EU law. Therefore, it must be interpreted in narrow terms.

The second is the need to avoid conflicting decisions in the EU legal order. The UKSC judgment was part of a web of parallel proceedings before different courts: in addition to litigation before the General Court and the Court of Justice about the validity of the Commission’s Decision, a Swedish District Court had refused to enforce the Award and an action before Belgian courts was pending at the time.

The third thread is the principle set out in Achmea (Case C-284/16) as developed in subsequent case-law (Komstroy, Case C-741/19 and PL Holdings, Case C-109/20): to remove intra-EU disputes from the EU judicial system would ‘call into question the consistency, full effect and autonomy of EU law as well as, ultimately, the particular nature of the law established by the Treaties’ (Case C-516/22, para. 86).

These threads are not surprising as they reflect either settled case-law or, in the case of the autonomy of EU law, the clear direction of recent case-law.

The violation of Article 351(1) TFEU

The central question was whether the obligation of the courts of a Contracting Party to enforce an award under Article 54 ICSID Convention is owed to all ICSID Contracting Parties or only to the investor’s home State. The UKSC went for the former view and concluded that, by virtue of the first paragraph of Article 351 TFEU, the right of each non-EU Member State party to the ICSID Convention to have the Award enforced by UK courts ‘shall not be affected’ by the TFEU State aids provisions.

However, the Court of Justice did not agree: following the Opinion of Advocate General Emiliou (Case C-516/22), it distinguished between the ‘purely factual interest’ that all parties have in the enforcement of arbitral awards according to the ICSID Convention and the legal ‘right’ of the Contracting Party to have a specific award

enforced (Case C-516/22, para. 76). It is only the latter that may be protected under the first paragraph of Article 351 TFEU and, given that the investors in Micula were established in Sweden and they sought to have the Award enforced by a UK court (when it was bound to apply EU law) against another Member State, the protection afforded under the first paragraph of Article 351 TFEU was not applicable.

The Court of Justice considered the reasoning of the UKSC judgment lacking as it ‘failed to examine in detail’ the extent to which, by refusing to enforce the Award in an intra-EU context, the UK could incur international liability towards non-EU Member States contracting parties to the ICSID Convention, particularly under Article 64 ICSID Convention (Case C-516/22, para. 77). However, its own contrasting interpretation of the Convention is not only strikingly broad-brush but also makes no reference to the principles of interpretation of international treaties as codified in the Vienna Convention on the Law of Treaties. In fact, rather than based on the wording, purpose and context of the ICSID Convention, in its interpretation of the latter the Court of Justice appears to be guided mainly by the requirement that the first paragraph of Article 351 TFEU be interpreted narrowly. This is unfortunate, as the underlying issue merited thorough and convincing reasoning.

There is also something else lurking in the background, namely the Achmea judgment and the subsequent caselaw which gradually affirms the application of EU law to investor-State intra-EU disputes at the expense of the protection afforded under Bilateral Investment Treaties. While the autonomy of EU law is only mentioned expressly once (Case C-516/22, para. 86), it is the Court’s broad understanding of that principle that underpins its interpretation of the ICSID Convention within the meaning of the first paragraph of Article 351 TFEU.

In his robust criticism in this blog of the Opinion of Advocate General Emiliou on this point, Paschalis Paschalidis defended the UKSC’s interpretation of Article 54 ICSID Convention and argued that the Court of Justice should intervene only if the latter was ‘so plainly wrong that no bona fide interpreter of Article 54 could have reached that interpretation’. However, this is quite a low bar to apply given the exceptional nature of the first paragraph of Article 351 TFEU, let alone the exclusive jurisdiction of the Court of Justice to interpret the scope of this provision and the specific legal context within which the UKSC handed down the Micula judgment.

The violation of the duty of cooperation under Article 4(3) TEU

The UKSC was found to have violated the duty of cooperation under Article 4(3) TEU because, while the annulment action against the 2015 Decision was pending before the Court of Justice, it should have either stayed its proceedings pending final judgment or referred to the Court of Justice on the validity of the Decision.

Given the ongoing Micula litigation before both the Court of Justice of the European Union and domestic courts of other Member States, it is difficult to envisage circumstances which would have made a reference to the Court of Justice more necessary. The argument that the UKSC had made (that it was not for the Court of Justice to determine the scope of the UK obligations under the ICSID Convention) was not convincing and its reliance on the case-law (Levy, Case C-158/91, para. 21 and Evans, C-324/93, paras. 29) was misconceived. On the one hand,

the division of tasks between domestic courts and the Court of Justice in the context of a preliminary reference procedure may not be viewed as depriving the latter from its jurisdiction to interpret the scope of EU law (in this case, the first paragraph of Article 351 TFEU). On the other hand, this is all the more so given that the existence of the annulment action against the Commission’s Decision. The distinction between annulment actions and preliminary references that the UKSC made (Micula, para. 99) illustrates a narrow approach to judicial review and does not take into account the interpretation of the two procedures as a whole in the context of judicial review (for instance, Rosneft, Case C-72/15, paras. 68-70).

As for the argument that the prospect of either the General Court or the Court of Justice addressing the applicability of the first paragraph of Article 351 TFEU was remote (Micula, paras. 55 and 114), it was rightly dismissed. Not only did it ignore the implications of the procedure governing annulment actions under Article 263 TFEU but it also construed the duty of cooperation that binds domestic courts, let alone a court of last instance, in unduly narrow terms.

The violation of the duty to refer under Article 267 TFEU

The conclusion that the UKSC violated its obligation to refer to the Court of Justice was based, amongst others, on the complexity of the scope of the obligations assumed under the ICSID Convention, the absence of case-law on the specific issue of interpretation of the first paragraph of Article 351 TFEU and its impact on the primacy of EU law, the divergence of views adopted by the Commission and different courts in different Member States, including the UK where both the High Court and the Court of Appeal had decided not to interpret Article 351 TFEU in order to avoid a risk of conflicting decisions.

To argue that the interpretation of the first paragraph of Article 351 TFEU in the circumstances under which the UKSC handed down the Micula judgment was so obvious as to leave no scope for any reasonable doubt is simply not credible. In fact, these circumstances were paradigmatic of when a court of last instance ought to refer to the Court of Justice.

Conclusion

While this enforcement action may well have been brought by the Commission as part of its overall strategy in the Micula litigation, it is difficult to defend the UKSC judgment in the light of the duty of cooperation imposed under Article 4(3) TEU and the duty to refer under Article 267 TFEU. A decision of a court of last instance not to refer in circumstances as contested as those in Micula would be at odds with their responsibility as EU courts and the objective of the preliminary reference to avoid the real risk of conflicting decisions. This would undermine not only the effectiveness of EU law but also the legal certainty that investors need. Viewed from this angle, the judgment in Commission v UK (Case C-516/22) sends a message to domestic courts of last instance to take their duty to refer seriously.

Stepping back from the procedural context of the case, the judgment consolidates the case-law that originates in Achmea (Case C-284/16). While its reasoning on the matter is no clearer or more detailed than what we have come to expect (in addition to Achmea, Case C-284/16, a case in point is Komstroy, Case C-741/19), it illustrates clearly the distaste that the Court of Justice has for any interference of international law with the application of EU law in intra-EU disputes.

Panos Koutrakos is Professor of EU Law and Jean Monnet Professor of EU Law at City, University of London and a barrister at Monckton Chambers, London.

SUGGESTED CITATION: Koutrakos, P.; “The UK Supreme Court ‘seriously compromised the EU legal order’: the European Court of Justice judgment in Commission v UK (Case C-516/22)”, EU Law Live, 10/04/2024, https://eulawlive.com/op-ed-the-uk-supreme-court-seriously-compromised-the-eulegal-order-the-european-court-of-justice-judgment-in-commission-v-uk-case-c-516-22-by-panos-koutrakos/

Access to national supreme courts and preliminary ruling: are the principles of equivalence and effectiveness enough to protect the keystone of the EU judicial architecture?

Mariana Martins Pereira

In the pending case KUBERA (C-144/23), the Court of Justice will have to decide whether national rules making the grant of leave to appeal to supreme courts subject to certain admissibility criteria must be interpreted in the light of the obligation of those courts to refer questions to the Court of Justice for a preliminary ruling. This OpEd discusses whether an answer to this question can be found in existing case law and whether those admissibility criteria fall under the principle of procedural autonomy, subject to the principles of equivalence and effectiveness.

Filtering criteria for accessing supreme courts are common in most legal systems around the world. In many EU Member States, supreme courts grant leave to appeal only in cases of significant public interest raising important questions of law, or when there is a need to ensure the consistency of the case law. These admissibility criteria guarantee the proper administration of justice and avoid excessively lengthy proceedings, thereby ensuring that supreme courts devote their resources to the most important cases which go beyond the mere interest of appellants in having their case reassessed. In principle, these rules apply to cases raising both national and EU law issues. However, regarding the latter, supreme courts are bound by Article 267, third paragraph, TFEU, which imposes an obligation to resort to the preliminary ruling procedure whenever a question on the interpretation or validity of EU law is raised, subject to the CILFIT exceptions. The question that arises is whether, as a matter of EU law, supreme courts are obliged to take account of Article 267, third paragraph, TFEU, at the admissibility stage.

Accordingly, KUBERA’s constitutional importance for the EU legal order seems undeniable. It will add another building block to the relationship between the Court of Justice and national (supreme) courts, fostered by the preliminary ruling procedure. This was demonstrated by the assignment of the case to the Grand Chamber, as well as by the participation of several governments in the hearing on 5 March. Both their pleadings and the judges’ questions focused on whether the admissibility criteria for granting leave to appeal fall within the scope of the principle of procedural autonomy in the sense of Consorzio (C-561/19, para. 61) and Aquino (C-3/16, para. 56), or whether a distinction should be drawn between ‘procedural’ admissibility criteria (recevabilité) and ‘substantive’ admissibility criteria (admissibilité), with only the former falling within the scope of procedural autonomy. While the Slovenian government (supported by other governments) pleaded for the procedural autonomy of Member States, Germany and the Commission argued for the distinction between substance and procedure. It is worth recalling that Aquino concerned the inadmissibility of an appeal before the Belgian Court of Cassation, on the ground that certain arguments supporting the appealed judgment, which were capable of justifying it in themselves, had not been challenged by the appellant. Consorzio concerned a national procedural rule pursuant to

which new points of law could only be raised up to a certain point in the proceedings before the Italian Council of State. Returning to the above-mentioned distinction, these two judgments concerned procedural admissibility criteria, linked to the form of the appeal. The Court of Justice therefore ruled that a ‘national court or tribunal of last instance may refrain from referring a question to the Court of Justice for a preliminary ruling on grounds of inadmissibility specific to the procedure before that court or tribunal, subject to compliance with the principles of equivalence and effectiveness’. Contrarily, such a solution cannot easily be extended to criteria related to the objective importance of the appeal, which are substantive in nature.

Like KUBERA, Lyckeskog (C-99/00) concerned the admissibility criteria to appeal before the Swedish Supreme Court. What the referring court sought to clarify was whether, due to those criteria, the Court of Appeal (second instance) could be considered ‘a court or tribunal against whose decisions there is no judicial remedy under national law’ (Article 267, third paragraph, TFEU). The Court of Justice replied that decisions of a national appellate court which can be challenged by the parties before a supreme court do not qualify as such. Furthermore, the fact that examination of the merits of the appeal was subject to a prior declaration of admissibility by the supreme court, dependent on the appeal’s ‘importance for guidance as to the application of the law’, did not have the effect of depriving the parties of a judicial remedy (Lyckeskog, paras. 16 and 17; Cartesio (C-210/06), para. 77). While this qualifies as the ruling’s ratio decidendi, an important obiter dictum followed: the Court of Justice declared that ‘if a question arises as to the interpretation or validity of a rule of [EU] law the supreme court will be under an obligation, pursuant to the third paragraph of Article [267 TFEU], to refer a question to the Court of Justice for a preliminary ruling either at the stage of the examination of admissibility or at a later stage’ (Lyckeskog, para. 18). Given that, albeit seeking an answer to a different preliminary question, Lyckeskog concerned national rules similar to those at stake in KUBERA, it is submitted that the Court of Justice could now rely on paragraph 18 of Lyckeskog and develop it. This would be in line with its usual ‘stone by stone’ approach, whereby a given principle, announced in a prior judgment, is clarified when the precise question requiring such a clarification is raised before the Court of Justice.

It therefore appears that, while existing case law offers important insights, some clarification is in order. Firstly, a distinction between the present case and those concerning procedural admissibility criteria, whereby only the latter fall within the scope of procedural autonomy, would be welcomed. In so doing, the Court could rely on its established case law pursuant to which the principle of procedural autonomy only applies in the absence of EU provisions on the matter. While that is true of procedural rules such as those at issue in Aquino or Consorzio, the same cannot be said of substantive admissibility criteria. Indeed, a refusal to grant leave to appeal for lack of objective importance is directly linked to the obligation to refer, since it would essentially constitute an exception to it. As the exceptions to this obligation have been harmonised in CILFIT, this area cannot be subject to the principle of procedural autonomy. This does not mean that all aspects of appeals before supreme courts are out of the procedural autonomy’s scope. Member States retain competence to organise their appeals system. It is only where the substantive admissibility criteria to lodge an appeal and the CILFIT criteria overlap that procedural autonomy ceases to apply.

This clarification would then open the way for the application of Lyckeskog. It would follow that, in applying national rules imposing substantive admissibility criteria, national supreme courts must simultaneously apply Article 267, third paragraph, TFEU, and the CILFIT criteria. This does not mean that whenever appellants raise EU law questions and request a reference for a preliminary ruling, supreme courts have to grant leave to appeal. If the appellant has not complied with an essential procedural requirement, within the meaning of Aquino and Consorzio (but also of Van Schijndel (C-430/93) and Peterbroeck (C-312/93)), the national court is not bound by the obligation to refer. In fact, ‘if, in accordance with the procedural rules of the Member State concerned which observe the principles of equivalence and effectiveness, the pleas in law raised before a court or tribunal referred to in the third paragraph of Article 267 TFEU must be declared inadmissible, a request for a preliminary ruling cannot be regarded as necessary and relevant for that court or tribunal to be able to give judgment’ (Consorzio, para. 65; however, the European Court of Human Rights has applied this reasoning also to substantive admissibility criteria). Additionally, a supreme court is not obliged to grant leave to appeal if the situation falls within a CILFIT exception, provided that its decision is reasoned (Consorzio, para. 51; note that in KUBERA the Slovenian Supreme Court is also asking the Court of Justice about the scope of the obligation to state reasons at the admissibility stage. A similar question, albeit concerning summary reasoned decisions on the merits, is also pending). However, if the applicant fulfils all the procedural requirements and no CILFIT exception applies, the supreme court is bound by the obligation to refer. This is where Lyckeskog comes into play, pursuant to which a choice can be made between accepting the appeal and making a reference for preliminary ruling at a later stage or referring the question at the admissibility stage. According to the Opinion of Advocate General Tizzano in Lyckeskog (para. 46), the latter would be particularly suitable if the supreme court is inclined to declare the appeal inadmissible. Still, it could be questioned whether in that case the reference would be necessary to settle the dispute. In this regard, there are two possible outcomes: either the Court of Justice’s ruling confirms the appellate court’s interpretation of EU law, and the supreme court would be entitled to refuse leave to appeal; or the Court’s answer conflicts with the appellate court’s decision, and the supreme court would be obliged to accept the appeal and enforce the Court of Justice’s interpretation. In both scenarios, the preliminary ruling would be decisive to settle the dispute in the main proceedings.

A final important disclaimer must be made. In most cases, there is no tension between national admissibility criteria to appeal before supreme courts and the obligation to refer questions for a preliminary ruling: genuine questions of EU law, timely raised by the appellant, tend in and of themselves to be objectively relevant, justifying the admissibility of the appeal. Similarly, if a question of EU law does not meet this threshold, a CILFIT exception probably applies. From this perspective, KUBERA will mainly function as a safety net for situations where the application of substantive admissibility criteria by supreme courts would lead to the inadmissibility of appeals that would have required the clarification of a question of EU law. A judgment of the Court of Justice along the lines suggested would thus ‘prevent a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States’, thereby safeguarding the uniform interpretation and application of EU law. In short, it is about ensuring that national supreme courts play their role as ordinary EU courts at every stage of the proceedings.

The Week

Mariana Martins Pereira is a Lawyer working on EU and ECHR matters in a specialised law firm in Lisbon, Portugal. She has an L.L.M in Law and was a trainee at the Court of Justice and at the European Court of Human Rights.

SUGGESTED CITATION: Martins Pereira, M.; “Access to national supreme courts and preliminary ruling: are the principles of equivalence and effectiveness enough to protect the keystone of the EU judicial architecture?”, EU Law Live, 09/04/2024, https://eulawlive.com/op-ed-access-to-nationalsupreme-courts-and-preliminary-ruling-are-the-principles-of-equivalence-and-effectiveness-enough-to-protect-the-keystone-of-the-eu-judicialarchitecture-b/

The cost of consumer rights. Bank compensation for early repayment in

mortgage

credit contracts (VR Bank RavensburgWeingarten, C-536/22)

Filippo Morello

1. Framing the case

There is no need to bother Guido Calabresi to remind us that rights in private law are costs imposed on other individuals. In the context of credit law, a cost-based view of borrowers’ rights goes beyond the metaphor, since banks actually pay for a consumer’s withdrawal or cancellation in the form of a lost transaction or a reduced profit. The allocation of costs for early repayment follows this pattern closely: EU law gives borrowers the right to repay all the capital received at any time, with a reduction in the total cost of the loan. Whether the reduction includes more than the unaccrued interest and the recurring costs due to the anticipated payment, mentioned in Article 25 of Directive 2014/17/EU (Mortgage Credit Directive, hereinafter MCD), is the fundamental question raised in the VR Bank Ravensburg-Weingarten (C-536/22) case before the Court of Justice. The short answer given by the Court of Justice on 14 March 2024 is yes; consumers may well be required to reimburse the bank’s loss of profit under national law.

2. The contract, the dispute, German and EU law

Two consumers signed a mortgage credit agreement with VR Bank in Ravensburg, Germany, to buy an apartment. After one year, one of them is transferred to work in another city, so they sell the apartment and settle their debt by repaying the bank the full principal and the compensation provided for in the contract. The compensation is calculated on the basis of the ‘asset/liability’ ratio, whereby the consumer must pay the bank the difference between the interest not owed for the early repayment and the return it would obtain by investing the money returned early in securities with the same maturity as the loan repaid, minus the administrative costs not incurred as a result of the shorter duration of the loan. The logic is simple: the reduced maturity of the loan deprives the bank of interest, but at the same time, it reduces recurring costs and, above all, provides it with immediate liquidity for reinvestment. Reportedly, the calculation in this case resulted in the consumers paying the bank a compensation of around 27,000 euros on a net loan amount of 236,000 euros. After repaying the capital and the compensation, the consumers sued the bank for restitution of the latter, claiming that they had not received sufficient information on the early repayment charges and that the asset/liability ratio was in breach of Article 25 of the MCD.

Before the Landgericht Ravensburg, the plaintiffs argued that the German rules allowing banks to claim such high compensation were contrary to EU law. In particular, § 502 (1) of the German Civil Code (BGB) allows

the creditor, in a case such as the one at issue, where the interest rate is fixed, to claim ‘suitable compensation for the loss directly linked to the early repayment’. The Landgericht points out that the Bundesgerichtshof (BGH, German Supreme Court) considers the ‘asset/liability’ method developed by German banks to be compatible with § 502. However, the referring court is unclear as to whether this is in line with Article 25 MCD in two respects.

On the one hand, its paragraph 3 allows Member States to provide for ‘fair and objective compensation for costs directly linked to early repayment’, provided that it does not impose a sanction on the consumer and does not exceed the creditor’s financial loss. On the other hand, paragraph 1 lays down that early repayment comes with a mandatory ‘reduction in the total cost of credit [..] consisting of the interest and their costs for the remaining duration of the contract’. In this view, before commenting on the Court’s ruling, it should be noted that Article 25 MCD has a clear facial meaning: the maximum threshold of the financial loss for the purpose of the bank’s compensation cannot be the expected return if the contract had been properly performed. The lost profit must be set off against the expenses saved and the early availability of the capital.

In a nutshell, the referring court asks the Court of Justice if the German asset/liability criterion places too much of the loss at the consumer’s door, or, in other words, who must pay (the most) for the right to early repayment. Interestingly, the outcome is contrary to what one would expect from consumer law.

3. Notion and extent of financial loss

The first question addressed in the judgment deals with the ancillary problem of whether the cost allocation rule of Article 25 extends to the case of termination on exceptional grounds set forth in § 490(2), BGB. The remedy to which the two consumers actually resort is termination and not early repayment under §§ 500-502. As the Advocate General’s Opinion makes clear (point 72), in the case of termination for exceptional reasons, the consumer must repay the capital and compensate the creditor for the full financial loss, whereas the asset/liability ratio applied in the case of early repayment for legitimate interest entails a lower cost for the consumer. The solution for the Court is simple: the risk that consumers who terminate the contract will be worse off than those who repay early justifies the application of Article 25 MCD in both cases. This is achieved without any analysis of the different structure and effects of the two remedies, behind the ambiguous and unsatisfactory assertion that the Directive does not affect the ‘validity, formation or effect of a contract’ (recital 21; para. 28 of the judgment).

The second question asks whether the ‘fair and objective compensation [...] for possible costs directly linked to the early repayment’ provided for in Article 25(3) of the MCD can include the bank’s loss of profit derived from the unaccrued interest. The Court’s reasoning in this respect is essentially based on the literal wording of the Directive. The ‘fair and objective’ measure of compensation, the broad reference to all ‘possible costs’ and the only limitation that compensation may not constitute a sanction and may not exceed the financial loss, suggest to the Court that the lost interest may well be recoverable from the consumer. Such a possibility is intrinsically linked to one of the objectives of the Directive, ‘the creation of an efficient and competitive internal market in credit agreements’ (para. 47) - namely, to ensure that the consumer’s ability to switch to a different and more convenient bank during the course of the contract, the very aim of the early repayment rule, does not disproportionately affect

the original bank. However, this argument falls short because it avoids any analysis of what constitutes a financial loss – ‘loss of profit’ - in the context of early repayment. Allowing banks to claim interest for the entire term of a contract that has been repaid before its due date limits and potentially nullifies the ‘reduction in the total cost of credit’ of Article 25(1) MCD. If paragraph 1 allocates the costs of the shorter maturity to the bank to the benefit of the discharging consumers, paragraph 3 cannot be intended to allow the banks to pass on these costs in full to the consumer, resulting in a de facto repeal of paragraph 1. The agreeable idea that the bank should not bear the entire financial burden of the consumer’s early repayment ends up treating a consumer right as a wrong, since it does not address what constitutes a ‘financial loss’ in this context. The limits that compensation should not constitute a sanction and should not exceed the financial loss are evidently too weak to avoid such an outcome.

However, an unconvincing legal principle may well lead to a convincing decision in a particular case. The application of the ‘loss of profit’ doctrine to the asset/liability ratio upheld by the German courts, the subject of question 3, does indeed lead to a fairly reasonable result: the German method of calculation takes account of the banks’ losses and gains fairly and allocates the costs of early repayment reasonably. This does not make the Court’s interpretation of Article 25 per se correct.

Finally, it could be pointed out that the asset-liability method expressed in the contractual clause would hardly pass the transparency tests designed by the Court, such as the famous one in the Kàsler Arpad case. Under this doctrine, consumer contract terms shall not only be written in plain and intelligible language; they shall also allow consumers to understand the economic consequences of the clauses. However, despite the consumer’s claims before the national court, the transparency of the asset/liability ratio is not cast into doubt before the Court of Justice. Filippo Morello is Research Fellow and Adjunct Professor in Comparative Private Law at the University of Pisa. He was previously a Land Steiermark Fellow at the University of Graz. He holds an MJur from the University of Oxford and a Ph.D. in co-supervision from the University of Pisa, Italy, and the University of Osnabrück, Germany. His latest publication is ‘From Consumer Credit to Consumer Credits? Merits and Flaws of the 2008/48/EC Directive’s Reform Proposal’ in European Review of Private Law 4-2023 [845–870].

SUGGESTED CITATION: Morello, F.; “The cost of consumer rights. Bank compensation for early repayment in mortgage credit contracts (VR Bank Ravensburg-Weingarten, C-536/22)”, EU Law Live, 12/04/2024, https://eulawlive.com/op-ed-the-cost-of-consumer-rights-bank-compensation-forearly-repayment-in-mortgage-credit-contracts-vr-bank-ravensburg-weingarten-c-536-22-by-filippo-morello/

Unsilencing democracy: the EU’s anti-SLAPP Directive

Eduardo Silva de Freitas

SLAPPs and media suppression

In the wake of the tragic demise of Daphne Caruana Galizia, a beacon of investigative journalism, the EU has taken a decisive stance against the misuse of legal systems to silence critical voices. The anti-SLAPP Directive (or ‘Daphne’s Law’), which has been approved by both the European Parliament (EP) and the Council, marks a pivotal moment in safeguarding media freedom. In June last year, a Long Read was published in EU Law Live addressing in detail both the general framework of the proposed Directive and the amendments put forward by the EP. This Op-Ed will provide an overview of the Directive, briefly recap on some of the points of the long read and explain the changes made in this approved version, as well as discuss other aspects in more depth.

This Directive confronts the insidious practice of SLAPPs, where influential entities or persons deploy the courts as battlegrounds to intimidate and suppress those who dare to scrutinise their actions. When exploring the concept of SLAPPs for those unfamiliar, a dynamic approach can be achieved by examining cinematic portrayals such as ‘The Post’ (2017), ‘The Girl with the Dragon Tattoo’ (2011) – though the latter is unadvised for sensitive viewers – and John Oliver’s 2019 episode of Last Week Tonight on SLAPPs. By commencing with legal threats and escalating to costly litigation, these actors aim to stifle the essential discourse on matters of public interest. The Directive’s provisions, crafted with the intent to fortify freedom of expression, delineate the contours of legitimate legal disputes while disarming the arsenal used to undermine civic engagement.

Definitions and scope

The Directive sets out minimum requirements, meaning that Member States may introduce or maintain provisions more favourable to protect public participation against abusive court proceedings (Article 3). Public participation is defined as actions related to freedom of expression and information on matters of public interest, including fundamental rights, public health, safety, the environment, or allegations of corruption concerning both public and private actors (Article 4(1)). This is in line with the decentralised and multi-level style of EU governance, in which a wide array of actors is involved in the provision of a range of public goods, and public scrutiny is consequently relevant across many areas. However, the approved version rolled back on the EP Report’s inclusion of acts like boycott and peaceful protests in the text of the Directive itself, now mentioned only in Recital 22, thereby leaving an essential tool of public participation under dubious protection.

Furthermore, unlike the EP Report’s explicit extension of the scope of Directive, in the text of the legislation itself, to acts of public participation taking place in the online environment, this new version only mentions this modality in Recital 9. One may consider this a particularly delicate backslide, as many acts of public participation

do take place via the internet and, as the law currently stands, the Court of Justice does afford a multitude of forum shopping opportunities for tort claims grounded on allegations of personality rights violations on the internet.

The Directive applies to matters of a civil or commercial nature only when they involve cross-border implications (Article 2). Cross-border implications are present unless both parties are domiciled in the same Member State and all relevant elements are located only there (Article 5).

Abusive court proceedings against public participation are described as those not genuinely asserting a right but aiming to prevent, restrict, or penalise public participation through unfounded claims (Article 4(3)), with indications of such a purpose including the disproportionate, excessive, or unreasonable nature of the claim, the existence of multiple proceedings, intimidation, harassment, threats, or the use of bad faith procedural tactics. The approved version also aligns with the EP Report’s proposed inclusion of political asymmetry as a criterion for identifying SLAPPs. Importantly, including this criterion recognises that SLAPPs are often employed by powerful people and entities to suppress dissent (see Recital 15). This definition of abusive court proceedings builds upon that proposed by the anti-SLAPP Model Directive, which has been praised for resembling Quebec’s experience of providing objective means of identifying a SLAPP stemming from a civil law tradition, thus being more amenable to accommodation in European legal systems.

Procedural safeguards: the cornerstone of the Directive

The protection against abusive court proceedings is best crystalised in the Directive’s provisions on procedural safeguards. These safeguards collectively aim to ensure that defendants can defend themselves against abusive litigation with reduced fear of financial, non-material, or reputational harm.

Article 6 of the Directive provides three procedural safeguards that defendants may apply for in case of abusive court proceedings: security for costs, early dismissal, and dissuasive remedies, the latter also including award of costs. These measures can also be taken ex officio by national courts (Article 6(2)). Taking up on the amendment made by the EP Report, the Directive demands that Member States grant this ex officio power to national courts, in contrast to the Commission’s original proposal in which this was only optional. This provision enhances the efficiency of the system by proactively addressing abusive court proceedings. The processing of the application for any of these procedural safeguards shall be accelerated as per Article 7 of the Directive.

Security for costs is provided for in Article 10 of Directive, and its goal is rather straightforward: it provides defendants with reassurance that they can spend the amounts deemed necessary for appropriate defence without the fear of being unable to recover at least part of these costs from the claimant, as provided for by national law. It may also have, when provided for in national law, a protective function in cases where security is required to pay for possible damages incurred due to the bringing of abusive court proceedings, curtailing the possibility of leaving the harm unaddressed.

Subsequently, Article 11 provides for early dismissal of manifestly unfounded claims. The idea of an early dismissal of abusive proceedings against public participation is particularly welcome. It recognises the wide understanding that this type of proceedings is used more with the goal of placing an unfair psychological and economic burden on the defendant rather than of vindicating a substantive claim. An early dismissal prevents such a threat from escalating to more harmful proportions. When a motion for such an early dismissal is filed, Article 12 of the Directive demands that the burden of proof is shifted to the claimant, who then should substantiate the claim for the court to allow it to proceed. Claimants should be able to appeal a decision to dismiss the case on an early stage under the Directive (Article 13). The possibility for defendants to appeal a decision that refuses an early dismissal was, however, mentioned in Recital 40 only, so such a possibility lies to a greater extent in the discretion of the Member States.

Finally, Article 15 of the Directive includes dissuasive measures aimed at penalising the initiation of abusive court proceedings. These measures encompass various forms of sanctions, such as penalties and, when provided for in national law, the awarding of damages to the defendant as well as a potential requirement for the publication of a retraction. Importantly, the amendment or withdrawal of a pending claim does not prevent the application of Article 15 measures (Article 8). Dissuasive measures, when combined with the possibility of early dismissal, serve as a crucial mechanism for curbing the chilling effect that abusive proceedings can have on the public debate. In essence, the threat of legal action concerning a matter of public interest may deter other individuals from expressing their opinions on the same subject, or concerning the same actors, out of fear of being targeted by similar lawsuits. Collectively, these safeguards are designed to shield public discourse from the stifling impact of frivolous litigation.

The wording of the Directive points to a different criterion to grant each of these safeguards. With regards to security for costs, it appears that the criteria are less rigid. Recital 36 points to the existence of elements that indicate the proceedings may be abusive and clarifies that the security is there to guarantee the enforcement of a decision that recognises such abusiveness. Article 10 itself only points to the mere fact that proceedings are ‘brought against natural or legal persons on account of their engagement in public participation’ as a condition to apply for such security. In my view, it makes sense that the criteria for granting security for costs is more flexible. Otherwise, such granting would almost automatically imply the recognition of the proceedings as abusive, triggering the possibility for early dismissal and already enabling the defendant to pursue the recovery of costs.

On the other hand, early dismissal is subject to scrutiny as to whether the proceedings are ‘manifestly unfounded’ (Article 11), whilst any measure under Article 15 should only be applied to ‘abusive’ proceedings. Importantly and as mentioned earlier, the fact that a procedure is ‘unfounded’ is part of the very concept of abusive proceedings under Article 4(3) of the Directive. Article 4 of the Directive does not contain a definition for the sole concept of ‘unfounded claim’. Therefore, although the wording in each provision is slightly different, I interpret both as demanding an analysis of all the criteria set by Article 4(3), taking together all the elements mentioned in such provision and not only whether the claim is ‘unfounded’ as mentioned in Article 11.

Measures related to support and costs

In addition to the possibility of granting security for costs under Article 10, the Directive has put forth other measures in place to seek an equality of arms between the parties in proceedings against public participation. This is an especially important feature of the Directive, as economic and power imbalances are characteristic of abusive proceedings against public participation (see Recital 15). Addressing such an imbalance is crucial to diminish the degree of the abovementioned burdens placed on the defendant and, consequently, the usefulness of abusive proceedings for intimidation.

Firstly, and for basically the same reasons just mentioned, Article 19(2) of the Directive clarifies that defendants targeted by abusive proceedings are entitled to legal aid under the Legal Aid Directive 8/2003

Secondly, Article 9 provides for the possibility of interested organisations intervening in the proceedings as amicus curiae, to assist the defendant with legal and factual arguments in accordance with national law. Given that some of these organisations can have better means and experience to fight legal battles and are often more familiar with court proceedings than individual defendants, this type of support can not only relieve the defendant of part of the burden posed but also put both sides of the proceedings on a more equal standing with regards to their resources to litigate.

One point stressed in the abovementioned Long Read was a suggestion that defendants be required to approve the participation of amici curiae in the proceedings, and that such participation should only be allowed to assist the side of the defendant. The rationale of this requirement is that allowing otherwise would reverse the goal of amicus curiae participation under the Directive to attempt a better distribution of the burdens of the proceedings, and potentially give an already resourceful claimant even more leverage to supress public participation. The approved version of the Directive is aligned with such a suggestion and requires that defendants approve the participation of amici curiae (Article 9).

Finally, Article 14 of the Directive also seeks to protect the economic position of the defendant by ensuring that any amounts recoverable under national law are fully borne by the unsuccessful claimant. The provision also requires Member States to go beyond any limitation imposed by national law on the recovery of the costs of legal representation unless these are excessive. If a limitation exists based on statutory fees tables, the defendant must be able to recover the remaining amount through other means.

Rules of private international law

In principle, the Directive does not impinge upon any of the rules established in either the Brussels I-bis Regulation 1215/2012 nor the Rome II Regulation 864/2007 (Recital 51). Article 5(2) of the Directive reinforces this by clarifying that, when deciding whether proceedings against public participation qualify as ‘cross-border’ under the Directive, the domicile of the defendant should be defined in accordance with the Brussels I-bis Regulation.

It is in a way understandable that the Directive did not bring any special rules on jurisdiction and applicable law, since the fact that the Directive establishes minimum safeguards against abusive proceedings should, at least in theory, pre-empt any advantages that forum shopping within the EU may bring for the claimant. After all, the goal of such forum shopping in jurisdictions like the United States is to evade anti-SLAPP legislation altogether, something that is no longer possible in the EU after the enactment of the Directive. However, the Directive’s failure to explicitly extend the scope to acts of public participation in the online environment, unlike the EP Report, is a significant omission in this regard.

That said, apart from seeking more favourable legislation, forum shopping in abusive proceedings is also used to raise the litigation costs for the defendant, as it exploits defendants’ unfamiliarity with foreign legal systems. For this reason, proposals have been made to revisit EU rules on private international law when it comes to SLAPPs grounded on allegations of defamation.

Despite that, the Directive sets important rules on private international law concerning judgments from third countries given in proceedings against public participation. Under Article 16 of the Directive, Member States must refuse recognition and enforcement of judgments given in unfounded proceedings targeting public participation issued against persons domiciled in their territory. In addition to that, Article 17 grants defendants the right to recover, before the courts of the Member State of their domicile, the costs spent on defending themselves against such proceedings filed by non-EU claimants in third countries. These two provisions are to be praised in attaining the objectives of the Directive, as they not only protect the defendant against judgments rendered in SLAPPfriendly jurisdictions but also seek to pre-empt the economic dimension of such intimidation.

Incorporation of the Recommendation

As explained in the abovementioned Long Read, the proposal for the Directive was accompanied by a Recommendation. The EP Report attempted to incorporate three provisions from such Recommendation into the main text of the Directive: collection of data, awareness raising measures, and deontological rules for lawyers. The first two were indeed incorporated in the approved version (Articles 19(1) and 20, respectively), whilst the latter was dropped.

Firstly, under Article 20 of the Directive, numerical data concerning SLAPPs across the EU, as well as their associated type of claim, claimant, and defendant must be submitted to the Commission by the Member States. This will promote the gathering of thorough data regarding SLAPP suits within the EU. Secondly, Article 19(1) of the Directive provides that Member States must provide participants in public engagement with details on procedural safeguards and support services, including awareness campaigns. Although this measure in itself is welcome, it falls short of the awareness raising endeavour envisaged in the anti-SLAPP Model Directive, which included the deontological rules for lawyers that were dropped, coupled with specific training for working on this type of proceedings.

In conclusion, the anti-SLAPP Directive represents a significant step forward in protecting freedom of expression and public participation. The Directive’s provisions aim to create a more level playing field and discourage the chilling effect of frivolous litigation. However, it is important to note that the Directive’s effectiveness may be limited by an over-reliance on national laws. While the Directive establishes procedural safeguards and measures to address power imbalances in SLAPP cases, the extent to which these measures are implemented and enforced could vary significantly across Member States. Furthermore, the Directive’s measures related to support and costs, such as legal aid and intervention by interested organisations, help address the economic imbalances inherent in SLAPP cases. Overall, the Directive’s comprehensive approach seeks to uphold media freedom and protect the public discourse while holding accountable those who seek to undermine it.

Eduardo Silva de Freitas is a PhD candidate at Erasmus University Rotterdam, as part of the NWO-funded Vici project ‘Affordable Access to Justice: Towards Sustainable Cost and Funding Mechanisms for Civil Litigation in Europe’ (No. VI.C.191.082).

SUGGESTED CITATION: Silva de Freitas, E.; “Unsilencing democracy: the EU’s anti-SLAPP Directive”, EU Law Live, 09/04/2024, https://eulawlive. com/op-ed-unsilencing-democracy-the-eus-anti-slapp-directive-by-eduardo-silva-de-freitas/

THE LONG READ

Identity of the European Union and identities of the Member States: which relationship?

Giovanni Pitruzzella 1

There are two different ways of conceiving the relationship between the identity of the Union and the constitutional identity of the Member States: the first sees them in opposition, the second in a relationship of cooperation and mutual learning.

The notion of ‘identity’ itself has an inherent ambiguity. On the one hand, identity is used to distinguish oneself from others and requires protection against those who, marked by a different identity, have the power to destroy and assimilate the former.

Today we speak of the politics of identity precisely to indicate the urge of groups with a distinct identity to demand to be recognised as such, not to be assimilated into the dominant identity, and even to obtain forms of redress for abuses committed against them.

At the same time, cultural rights, which imply precisely the recognition and guarantee of cultural identities that are juxtaposed and in no way assimilated to the identity considered dominant, are spreading. In this case, identity is used to erect barriers to protect the identities of very specific groups identified on the basis of some cultural factor.

Cultural identity can also be non-exclusive, but open to confrontation and dialogue. In this case, several identities may overlap and bridges are built between them, although they remain distinct, connecting them. In contrast to the first version of identity, belonging to an identity is not exclusive, so that the same subject can belong to different groups, each with its own identity.

This relationship between different but complementary identities is at the core of the European Union. Article 4 TEU, which recognises national identities, must be read in conjunction with Article 2 TEU, which sets out the fundamental values of the European Union. They form the basis of what Article 2 itself configures as a single society: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Member States are equal parts of this European society, according to Article 4(2) TEU, which

1. Judge of the Italian Constitutional Court. The opinions expressed are of a personal nature and do not commit the administration in any way. This speech was presented at the International Conference, ‘The Role of the Constitutional Courts in Concretising the Shared Value Uniting Europe’, 29 February – 2 March 2024, Riga.

mentions equality between Member States before national identities. Common values, a European society, equality between Member States and then the guarantee of national constitutional identities are the foundation of the Union.

In the historic judgment of the Court of Justice of 27 February 2018, the Portuguese Judges’ Association case2, as it is known, considered it of ‘primary importance’ to preserve the independence of judges in order to guarantee the principle of effective judicial protection of the rights that individuals derive from Union law. The Court linked this principle to the value of the rule of law enshrined in Article 2 TEU, stressing that the Union is founded on certain values common to the Member States, including the rule of law.

This judgment marked a turning point in the constitutional construction of the Union, as it focused the constitutional identity of the Union on the common values listed in Article 2 TEU.

More recently, in the judgments adopted by the Grand Chamber on 16 February 2022, the so-called conditionality judgments, the Court stated that ‘Article 2 is not merely a statement of political guidelines or intentions, but contains the values which ... are an integral part of the identity of the EU as a common legal order, values which find concrete expression in principles, including binding obligations on the States’.3

As the President of the Court of Justice, Koen Lenaerts, observed in an extrajudicial context, the Union is ‘first and foremost a Union of values’. 4 This is not just the value of the rule of law, but also of all the values listed in Article 2 TEU.

This view of the Union has important consequences. First, values – mind you, values, not legal principles –express a particularly strong form of integration. To share the values listed in Article 2 TEU is not simply to be part of an internal market or an international organisation looking after common interests. It means being part of a European society. Von Bogdandy argues precisely that Article 2 and the European public law based on it are at the origin of an European society.5

2. Judge of the Italian Constitutional Court. The opinions expressed are of a personal nature and do not commit the administration in any way. This speech was presented at the International Conference, ‘The Role of the Constitutional Courts in Concretising the Shared Value Uniting Europe’, 29 February – 2 March 2024, Riga. Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117.

3. Judgments of 16 February 2022, C-156/21, Hungary v. Parliament and Council, EU:C:2022:97 and C-157/21 Poland v. Parliament and Council, EU:C:2022:98.

4. K. Lenaerts, ‘On Checks and Balances: the Rule of Law within the EU’, in Columbia Journal of European Law, Special Issue, p. 1, and also K. Lenaerts, ‘National Identity, the Equality of Member States before the Treaties and the Primacy of EU law’, Bilateral meeting between the Court of Justice of the European Union and the Italian Constitutional Court: celebrating the 70th Anniversary of the Court of Justice of the European Union, Rome, 5 and 6 September 2022.

5. A. Von Bogdandy, Strukturwandel des öffentlichen Rechts, Surkamp, Berlin, 2022.

Member States freely entered this society and agreed to share these values. Values, unlike principles, do not provide for trade-offs or allow themselves to be sacrificed for the sake of another value, such as a State’s cultural identity.

The jurisprudence of the Court of Justice on the rule of law, which does not tolerate violations by a State in the name of its specific cultural identity, but also the jurisprudence on the prohibition of regression in the realisation of a value, fits into this perspective. Values, by virtue of their universality, require a gradual process of realisation. A State cannot go backwards in the level of realisation of a value and thereby weaken it. That is why, according to the Court, no illiberal and anti-democratic tendency can be allowed in the Union.6

One of these values is equality between Member States. Equality means that Union law must have the same meaning for everyone. Hence the role of the Court of Justice in ensuring the uniform interpretation of Union law.

The national courts, and in particular the constitutional courts, have the interpretation of national constitutions reserved to them, but it is up to the Court of Justice to give the interpretation of Union law from the Treaties for all.

The same requirement of equality and of a law applied in the same way in all States grounds the two principles of the supremacy of Union law and direct effect, but also the essentiality for the Union’s legal order of the preliminary reference, which prevents, as the Court of Justice has said, the power of the individual national court to refer a question to the Court for a preliminary ruling from being limited.

The binding and uncompromising nature of the values is coupled with their generality, which admit of different forms of realisation. This is where the constitutional autonomy of the Member States comes into play, in the face of which the Union comes to a halt, except in the case of a specific conflict with the rules of European law.

Thus the Court of Justice recognises that the value of the rule of law underpins the inviolable principle of the independence of judges, but recognises that each State may define its judicial order differently in accordance with its own constitutional principles,7 or that the prohibition of discrimination in labour relations applies to all States, as laid down in the relevant directives, but that since states follow different constitutional principles regarding the place of religion in the public sphere, they will regulate in accordance with their constitutional principles, the possibility of wearing the Islamic headscarf by a civil servant in a public administration, even to the extent of justifying the ban.8 In Boris Cilevičs and Others,9 the Court of Justice held that it was legitimate for a Member State to protect its national identities by adopting measures that sought to promote and develop the use of the official language in high education. Such a policy, according to the Court, constitutes a manifestation of national identity for the purpose of Article 4(2) TEU.

6. Judgment of 20 April 2021, Repubblika, C-896/19, EU:C:2021:311.

7. Judgment of 21 December 2021, Euro Box Promotion and Others, C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, EU:C:2021:1034; judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court), C-430/21, EU:C:2022:99.

8. Judgment of 28 November 2023, Commune d’Ans, C-148/22, EU:C:2023:924.

9. Judgment of 7 September 2022, Cilevičs and Others, C-391/20, EU:C:2022:638.

But if values are generic and are specified in principles that are then detailed in more stringent rules, in this process of specification comes the dialogue between the Courts, between the Court of Justice and the Constitutional Courts. In this way, a process takes place that is not top down, but is circular. The Constitutional Courts question the Court of Justice on the meaning of the Union law, also of the Union constitutional law, and the Court’s answer influences the national living constitution, because the Constitutional Courts in their judgments use the case law of the Court of Justice (a frequent occurrence in the case law of the Italian Constitutional Court). At the same time, the Court of Justice takes its cue from the indications contained in the preliminary references from the constitutional courts to interpret EU law, which is thus animated by what the Court of Justice has long called the ‘constitutional traditions common to the Member States’. The Court of Justice and the Constitutional Courts make also references to the jurisprudence of the Court of Strasbourg, when dealing with fundamental rights. The community of the European supreme courts (Court of Justice, Strasbourg Court, Constitutional Courts) thus forms, through a process of mutual learning, the European constitutional heritage, which is and must remain essentially pluralistic, cohesive around common values but safeguarding national constitutional specificities.

SUGGESTED CITATION: Giovanni Pitruzzella: “Identity of the European Union and identities of the Member States: which relationship? ”, EU Law Live Weekend Edition nº182, https://eulawlive.com/weekend-edition/weekend-edition-no182/

HIGHLIGHT F THE WEEK S O

The Week

Commission Delegated Regulation (EU) 2024/1041 amending Regulation (EU) 2022/869 as regards the Union list of projects of common interest and projects of mutual interest, published in OJ

Monday 8 April

Commission Delegated Regulation (EU) 2024/1041, adopted on November 28, 2023, modifies Regulation (EU) 2022/869 concerning guidelines for trans-European energy infrastructure, by focusing on revising the Union list of projects of common interest (PCIs) and projects of mutual interest (PMIs).

Read on EU Law Live

Slovak State aid measure supporting establishment of new electric vehicles production plant, approved by Commision

Monday 8 April

The European Commission found Slovakia’s €267 million investment aid granted to Volvo Cars to be in line with EU State aid rules.

Read on EU Law Live

Notice of initiation of expiry review of anti-dumping measures on imports of tubes and pipes fittings, originating in Russia, Republic of Korea and Malaysia, published in OJ

Tuesday 9 April

Official publication was made of a notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain tubes and pipes fittings, originating in Russia, the Republic of Korea and Malaysia.

Read on EU Law Live

EFTA Surveillance Authority approves new amendment to Norwegian compensation scheme for undertakings operating in energy-intensive industries

Tuesday 9 April

The EFTA Surveillance Authority (ESA) approved an amendment to the Norwegian aid scheme for compensation of indirect emission costs.

Read on EU Law Live

ECtHR delivers three Grand Chamber rulings in cases concerning climate change

Tuesday 9 April

The European Court of Human Rights has delivered three rulings on three cases related to climate change, highlighting the intersection of environmental concerns with human rights.

Read on EU Law Live

Court of Justice rules on procedural autonomy, equivalence, and effectiveness in the context of protecting consumers from abusive contract clauses under Directive 93/13

Tuesday 9 April

The Court of Justice has delivered its judgment in the case Profi Credit Polska (Réouverture de la procédure terminée par une décision définitive) (C-582/21) regarding procedural autonomy, equivalence, and effectiveness in the context of protecting consumers from abusive contract clauses under Directive 93/13.

Read on EU Law Live

Court of Justice: Pursuant to Article 17(1) TEU, it is for the Commission to ensure the signing of an international agreement, which is not in the scope of CFSP

Tuesday 9 April

The Grand Chamber of the Court of Justice delivered its judgment in a case concerning an action, brought by the Commission, seeking the annulment of Article 2 of Council Decision (EU) 2021/1117 on the signing, on behalf of the European Union, and provisional application of the Implementing Protocol to the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (2021-2026) and the designation by the Council through its President, of the Portuguese Ambassador as the person empowered to sign the Protocol: Commission v Conseil (Signature d’accords internationaux) (C-551/21).

Read on EU Law Live

European Union Agency for Fundamental Rights releases inaugural EU-wide report on racism in policing

Wednesday 10 April

The European Union Agency for Fundamental Rights (FRA) released its inaugural EU-wide report on racism in policing, shedding light on the pervasive issue across Europe.

Read on EU Law Live

General Court delivers judgment in Dexia v SRB: calculation of the 2022 ex ante contributions to the SRF is unlawful

Wednesday 10 April

The General Court delivered its judgment in Case T-411/22, Dexia v SRB regarding the calculation of the 2022 ex-ante contributions to the Single Resolution Fund (SRF).

Read on EU Law Live

General Court annuls inclusion of Aven and Fridman in the list of persons subjected to restrictive measures amid Ukraine conflict

Wednesday 10 April

The General Court has rendered judgments in Cases T-301/22 and T-304/22 concerning the inclusion of Petr Aven and Mikhail Fridman, major shareholders of Alfa Group, in the lists of persons subjected to restrictive measures due to the conflict in Ukraine.

Read on EU Law Live

Commission Implementing Regulation imposing anti-dumping duty on imports of certain alkyl phosphate esters originating in China, published in OJ

Wednesday 10 April

Official publication was made of Commission Implementing Regulation (EU) 2024/1064 of 9 April 2024 imposing a provisional anti-dumping duty on imports of certain alkyl phosphate esters originating in the People’s Republic of China.

Read on EU Law Live

General Court annuls Commission Decision on Danish State aid to large slaughterhouses in the form of reduced contributions for the treatment of wastewater

Wednesday 10 April

The First Chamber of the General Court has handed down, today, its judgment in a case concerning an action, by which the applicant, Danske Slagtermestre, seeks annulment of Commission Decision C(2018) 2259 final of 19 April 2018 on State aid SA.37433 (2017/FC) - Denmark (‘the contested decision’).

Read on EU Law Live

European Citizens Initiative on financial support to foster safe and accessible abortion, registered by Commission

Wednesday 10 April

The European Commission decided to register a European Citizens’ Initiative (ECI) entitled ‘My Voice, My Choice: For Safe And Accessible Abortion’, calling for a proposal for financial support to Member States for enabling safe termination of pregnancies for anyone in Europe who lacks access to safe and legal abortion.

Read on EU Law Live

2023

State aid Scoreboard published by Commission

Wednesday 10 April

The European Commission has published the 2023 State aid Scoreboard relating to the State aid expenditure in 2022, based on the reports provided by the Member States.

Read on EU Law Live

The Week

Commission’s report highlights state-induced distortions in China’s economy

Thursday 11 April

The European Commission released an updated report examining significant state-induced distortions in China’s economy, providing crucial information for EU trade defence investigations related to antidumping measures.

Read on EU Law Live

AG Szpunar: Court of Justice should annul European Parliament’s refusal to recognize status of Puigdemont, Comín as MEPs

Thursday 11 April

Advocate General Szpunar handed down his Opinion in Puigdemont and Comín v. Parliament (C-600/22 P), a case concerning the appellants’ action for annulment against the refusal of the President of the European Parliament to recognize their status as MEPs.

Read on EU Law Live

List of exclusions from remission of debts contained in Article 23(4) of Directive 2019/1023 is not exhaustive, holds Court of Justice

Thursday 11 April

On 11 April, the Court of Justice handed down judgment in Agencia Estatal de la Administración Tributaria (C-687/22), a request for a preliminary ruling from the Povincial Court in Alicante (Spain) concerning the interpretation of Article 23(4) of Directive 2019/1023 on restructuring and insolvency.

Read on EU Law Live

AG Pikamäe: National supervisory authority has obligation to act, when finding a breach of data protection rights

Thursday 11 April

Advocate General (AG) Pikamäe delivered his Opinion in a case concerning a preliminary ruling request from the Verwaltungsgericht Wiesbaden (Germany), by which that court asked the Court of Justice to clarify the powers and obligations of the Data Protection Commissioner as a “supervisory authority” within the meaning of the GDPR: Land Hessen (Obligation d’agir de l’autorité de protection des données) (C-768/21).

Read on EU Law Live

The Week

Gabel Industria Tessile: Court of Justice rules on the scope of horizontal direct effect of directives

Thursday 11 April

The Court of Justice rendered its judgment in Gabel Industria Tessile SpA (C-316/22), a preliminary reference from the District Court in Como (Italy) concerning the direct effect of directives.

Read on EU Law Live

GDPR compensation: Court of Justice clarifies liability and damages criteria

Thursday 11 April

The Court of Justice rendered a judgment in a case involving a preliminary ruling request under Article 267 of the TFEU, initiated by the Landgericht Saarbrücken (Regional Court of Saarbrücken, Germany) on November 22, 2021, received by the Court on December 1, 2021, in the proceedings between GP and juris GmbH: juris (C-741/21).

Read on EU Law Live

Interpreting importer responsibilities under REACH: Court of Justice delivers judgment in Triferto Belgium (C-654/22)

Thursday 11 April

The Court of Justice delivered its judgment in Triferto Belgium (C-654/22) on the interpretation of several articles within the Regulation (EC) No 1907/2006, commonly referred to as REACH, regarding the registration, evaluation, authorization, and restriction of chemicals.

Read on EU Law Live

General Court and Commission erred when assessing compatibility of UK tax advantage scheme with EU State aid rules, finds AG Medina

Thursday 11 April

Advocate General (AG) Medina delivered her Opinion in Joined cases (C-555/22 P; C-556/22 P; C-564/22 P), United Kingdom v Commission and Others, ITV v Commission and Others, LSEGH (Luxembourg) and London Stock Exchange Group Holdings (Italy) v Commission and Others, concerning the setting aside of the judgment under appeal and, consequently, the annulment of Commission Decision (EU) 2019/1352 of 2 April 2019 on the State aid SA.44896 regarding UK’s Controlled Foreign Company rules.

Read on EU Law Live

Court of Justice rules on ex officio examination of contractual clauses in air passenger cases

Thursday 11 April

The Court of Justice rendered a judgment in a case involving a preliminary ruling request from the Commercial Court No. 1 of Palma de Mallorca, Spain, received on March 20, 2023, concerning Eventmedia Soluciones, S.L. and Air Europa Líneas Aéreas, S.A.U. The case revolves around the interpretation of Articles 6(1) and 7(1) of Council Directive 93/13/EEC of April 5, 1993, regarding unfair terms in consumer contracts.

Read on EU Law Live

AG Medina: The ban on the provision of legal advisory services to legal persons established in Russia does not encompass the authentication and execution by a notary of a contract of sale of immovable property

Thursday 11 April

Advocate General Medina delivered her Opinion in Jemerak (C-109/23), a request for a preliminary ruling on the interpretation of Regulation 833/2014, as amended by Regulation 2022/1904 concerning restrictive measures adopted by the Council in the wake of Russia’s invasion of Ukraine.

Read on EU Law Live

Court of Justice: Preliminary ruling request from Polish court does not correspond to a need inherent in resolution of cases in main proceedings

Thursday 11 April

The Court of Justice’s Third Chamber handed down its judgment in four joined cases in regard to a preliminary ruling request concerning the interpretation of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights, as well as the principles of legal certainty, irrevocability of final decisions, proportionality and procedural autonomy: Sapira, Jurckow, Kosieski, Oczka (Joined cases C-114/23; C-115/23; C-132/23; C-160/23).

Read on EU Law Live

Article 19(1) TEU precludes national legislation permitting the non-consensual transfer of judges without a review procedure against such a decision, holds AG Collins

Thursday 11 April

Advocate General Collins handed down his Opinion D.K. and M.F. (Joined Cases C-647/21 and C-648/21), a set of requests for a preliminary reference from the Regional Court of Słupsk (Poland) concerning the scope and the practical application of the concept of internal judicial independence as recognised by [Article 19(1)(2) TEU], notably judicial freedom from undue influence or pressures emanating from within the judiciary.

Read on EU Law Live

AG Collins delivers Opinion in appeal case concerning Commission State aid decision in the context of display panels used for advertising purposes

Thursday 11 April

Advocate General (AG) Collins delivered his Opinion in JCDecaux Street Furniture Belgium v Commission (C-710/22 P), a case concerning an appeal, by which JCDecaux sought to have set aside the judgment of the General Court in Case T-642/19, which dismissed its action for annulment in regard to Commission Decision (EU) 2019/2120 of 24 June 2019 on State aid granted by Belgium to JCDecaux Belgium Publicité (SA.33078 (2015/C).

Read on EU Law Live

AG Ćapeta: Court of Justice should dismiss appeal in Anglo Austrian AAB v. ECB and Far East

Thursday 11 April

Advocate General Ćapeta delivered her Opinion in Anglo Austrian AAB v. ECB and Far East (C-579/22 P), a case concerning the Single Supervisory Mechanism Regulation (Regulation 1024/2013, ‘the SSM Regulation’). More specifically, it concerns ECB’s withdrawal of authorisation from Anglo Austrian AAB (‘the appellant’), a less significant credit institution established in Austria.

Read on EU Law Live

Grant agreement can be a public works contract subject to conditions to be determined by referring court: AG Campos Sánchez-Bordona delivers Opinion in NFŠ (C-28/23)

Thursday 11 April

Advocate General (AG) Campos Sánchez-Bordona handed down his Opinion in NFŠ (C-28/23), a case concerning a request for a preliminary ruling on the interpretation of Directives 2004/18/EC, 2014/24/EU, and 89/665/EEC

Read on EU Law Live

Advocate General Collins’ assessment of access to legal counsel in criminal proceedings

Thursday 11 April

Advocate General Collins delivered his Opinion in case C 15/24 PPU [Stachev] (i) CH v Sofiyska rayonna prokuratura, the Sofiyski rayonen sad (District Court, Sofia, Bulgaria), concerning a preliminary ruling request regarding the interpretation of Directive 2013/48/EU in light of Article 47 of the Charter of Fundamental Rights of the European Union.

Read on EU Law Live

The Week

AG Campos Sánchez-Bordona suggests interpretation of Article 67(1) of the Succession Regulation regarding conditions of issuing a European Succession Certificate

Thursday 11 April

Advocate General (AG) Campos Sánchez-Bordona rendered his Opinion in a case concerning the interpretation of certain points of the second subparagraph of Article 67(1) of the Succession Regulation: Albausy (C-187/23).

Read on EU Law Live

EBA Guidelines harmonize group capital test for investment firm groups

Friday 12 April

The European Banking Authority (EBA) released its final Guidelines on the application of the group capital test for investment firm groups, aiming to standardize criteria and promote a level playing field across the EU.

Read on EU Law Live

EU-US strengthen collaboration on tech competition policies

Friday 12 April

European Commission Executive Vice-President Margrethe Vestager, US Federal Trade Commission (FTC) Chair Lina Khan, and Assistant Attorney General Jonathan Kanter of the US Department of Justice Antitrust Division convened in Washington for the fourth EU-US Joint Technology Competition Policy Dialogue (TCPD).

Read on EU Law Live

Commission sends Member States draft proposal on limited prolongation of Temporary Crisis and Transition Framework State aid

Friday 12 April

The European Commission sent to Member States for consultation a draft proposal for a limited prolongation of the State aid Temporary Crisis and Transition Framework (‘TCTF’) to allow continued support for the agricultural sector, as a result of market disturbances, caused by Russia’s war against Ukraine.

Read on EU Law Live

Streamlining legal migration: Council approves unified work and stay permit for non-EU nationals

Friday 12 April

The Council approved a revised version of the Single Permit Directive, updating the 2011 directive to attract skilled workers and address gaps in legal migration to the EU.

Read on EU Law Live

The Week

Vacancy Notice: Legal Officer and Financial Officer at the European Research Executive Agency

Friday 12 April

The European Research Executive Agency (‘REA’) published a call for expression of interest, regarding the drawing up of a reserve list of Contract Agents to fill in vacant positions for the posts of Legal Officer and Financial Officer.

Read on EU Law Live

Revised rules concerning industrial emissions and their impact on the environment, adopted by Council

Friday 12 April

The Council adopted the revised directive on industrial emissions (IED) and the regulation on the establishment of an industrial emissions portal (IEP), the aim of which is to regulate and monitor the environmental impact of industrial activities.

Read on EU Law Live

Council gives green light for EU law establishing EU-wide minimum rules for tracing, freezing, confiscating, and managing criminal property

Friday 12 April

The Council approved a directive establishing EU-wide minimum rules for tracing, freezing, confiscating, and managing criminal property related to various crimes, including sanctions violations.

Read on EU Law Live

Council approves new rules on criminal prosecution of violation or circumvention of EU sanctions

Friday 12 April

The Council adopted a directive concerning EU-wide minimum rules for the prosecution of violation or circumvention of EU sanctions.

Read on EU Law Live