Weekend Edition Nº54 by eulawlive

Nº54

APRIL 17

2021

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DANIEL SARMIENTO

THE CONSOB WAY – OR HOW THE CORTE COSTITUZIONALE TAUGHT EUROPE (ONCE AGAIN) A MASTERCLASS IN CONSTITUTIONAL DISPUTE SETTLEMENT MARIANA MARTINS PEREIRA

CONSOB AND THE LESSONS LEARNT FROM THE ‘TARICCO SAGA’

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The Consob Way – Or how the Corte Costituzionale Taught Europe (once again) a Masterclass in Constitutional Dispute Settlement Daniel Sarmiento

court with full powers on fundamental rights, comTension is rising among Europe’s highest courts. As petence disputes, and the interpretation of complex the Court of Justice has gradually assumed a more issues of law in areas of policy requiring delicate baprominent role in se ing the judicial agenda, natiolancing acts? Should national nal high courts have started to high courts be relegated to resolve feel the presence of the ghost of domestic disputes, leaving the imirrelevance. It is no secret that in portant business to the adults in the last decade the Court of Juse Court of Justice Luxembourg? How are these tice has become the judicial pohas turned into the courts, accustomed for decades to werhouse of Europe, dealing display signi cant powers within with high-pro le cases that have supreme court the State, expected to assume a put the focus of a ention in the supporting role, simply because Luxembourg court. From data of the land another court, si ing in the disprotection to the digital ecotant Luxembourg, now dominanomy, from monetary policy to tes the scene? the Banking Union, the Court of Justice is now the standard Assuming and accepting a new and diminished ins“se er” of the European landscape, a judicial hegetitutional role is always a sensitive and bumpy promon with no competitor in sight. No other court in cess, even when the new reality is the result of a graEurope has the power, authority and mediatic magdual process of transformation. is is exactly what netism that the Court of Justice displays since the has happened to the Court of Justice and its national last few years. counterparts. While the Union expands its policy areas and develops an ever more exhaustive apIn this changing context, the question over the role proach towards integration, the Court has, ineviof national high courts, and particularly of constitutably, fully assumed the role that the Treaties always tional courts, looms large. What is the need for these conferred to it. Acting as the ultimate interpreter of courts when we already have a supreme European

1. Professor of EU Law (Complutense University, Madrid) and Editor-in-Chief of EU Law Live.

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role, actively in uencing the judicial activity of the Court of Justice not through rebellion or frustration, but by seduction. is approach has proved to be a success and, as it will be argued in this Long Read, a role model of constitutional dispute se lement in Europe for the future.

EU law, in a Union which has assumed a pivotal role in practically all areas of policy, the Court of Justice has turned into the supreme court of the land. is outcome was already envisaged by the Treaties, but its gradual coming into being has taken some observers, including some high national courts, by surprise.

e transition has been most painful among the I - Pragmatic Resignation constitutional courts of the Member States, particularly those which played a key role as arbiters of consSome high courts have assumed and accepted that titutional principle within their country. Highly resEuropean integration is an inevitable reality, with pected and very in uential in the domestic arena, high support among citizens and tangible bene ts the role of constitutional courts, as it resulted from across the country in a now highly globalized and the post-war liberal consenfractious world. e pragsus, seemed like a perfect t e pragmatically resigned high matically resigned high for an ever-lasting political courts have assumed that a courts have assumed that a arrangement based on libetransfer of jurisdictional inral and democratic values. transfer of jurisdictional inter- terpretive powers has taken e irruption of the Court of place from national capitals pretive powers has taken place to Luxembourg, and they Justice has le this vision in ta ers, not because the libe- from national capitals to Luxem- act accordingly. ey excepral and democratic consentionally make preliminary rebourg, and they act accordingly ferences sus is questioned by Eurowhen strictly necespean integration (quite the sary only, they rely on EU contrary), but simply because another jurisdiction law when the occasion arises and they interact and has taken up the task. is gradual loss of power has travel in oﬃcial visits to Luxembourg, but their role now stemmed into a signi cant hollowing out of is one of passive cooperation. eir red lines to Euroconstitutional court authority, with no signs of repean integration, if any, are so exceptional that it is gression or a return to the good old days in sight. diﬃcult to envision these courts ever implementing them.

e trauma has not been handled in a uniform way across the judicial landscape: some high courts have accepted it with stoic resignation, while others have revolted and refused to accept the new reality, living in permanent denial. However, as it will be argued in this Long Read, a small number of high courts, headed by the Italian Corte Costituzionale, have decided to pro t from this new scenario and to acquire a new

e case of the Spanish Tribunal Constitutional reects this a itude. Its red lines are there, but in its own -and only- Solange decision, back in 2004, it recognized that it would apply them “in the very exceptional, hardly conceivable case” (2), in which the EU would run counter to the basic core values of the

2. Declaration 1/2004 of 13 December, p. 4.

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e supporters of the rebellious approach claim that the Court of Justice must pay due a ention to national identities when solving complex and sensitive disputes

II - Revolt and frustration

well declare it ultra vires in the Member State. In contrast with the resigned approach which looks at these con icts as “hardly conceivable”, the rebellious high courts see these con icts everywhere, living in a constant state of vigilance and incentivizing eurosceptic litigation with more political rather than legal motivations. is approach openly ignores (or intentionally misreads) the principle of primacy of EU law, as developed in the case-law of the Court of Justice, and also risks undermining the coherence and eﬀectiveness of EU Law, since Member States can unilaterally depart from their EU obligations with the blessing of their domestic high court.

On the other side of the spectrum we nd the rebellious high courts, led by the German Bundesverfassungsgericht (BVerfG) and followed by others within Karlsruhe’s sphere of in uence. e position of the BVerfG, and more particularly of its Second Senate, is well known by now: competence control and identity control remain within the remit of the highest court of the land in each Member State. us, no ma er what the Court of Justice may eventually decide, the nal word will remain with the national high court and, if necessary, it will scrutinize in detail whatever the EU does and eventually may

e supporters of the rebellious approach claim that the Court of Justice must pay due a ention to national identities when solving complex and sensitive disputes. If not, each national high court shall have the right to depart from an identity-oﬀensive ruling coming from Luxembourg. e argument is also built on the duty of the EU to respect national identities (Article 4(2) TEU) and the principle of sincere cooperation (Article 4(3) TEU), but this line of reasoning consciously ignores that the primacy of EU law has never been made dependent upon these duties, quite the contrary. What the rebe-

Spanish Constitution. A similar approach can be gathered from the French Conseil Constitutionnel, probably due to institutional reasons linked to the limited powers of this jurisdiction, in contrast with other high courts of France. But overall, these jurisdictions have realized that there is nothing to gain from open confrontation, whilst acceptance facilitates dispute se lement and provides the legal certainty that the citizens expect from a modern and sophisticated legal order.

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on all the other legal systems of the Member States, llious courts are actually claiming, but without sathus ignoring their respective identities, which are ying it openly, is that the Court of Justice must act just as worthy and merit the same protection under on certain ma ers as they order, or otherwise its the Treaties. e subtle and complex balancing exerjudgments will be declared ultra vires in their Memcise that the Court of Justice performs when deliveber State. In sum, the BVerfG wants the Court of Jusring a ruling, trying to represent all legal traditions tice to act like the BVerfG would act in solving a disand identities through a blend of different legal dispute, using the same standard of scrutiny, using the courses, would cease to exist if it was to follow the same legal categories it employs and, of course, drainstructions of the rebellious courts. wing the same solution that the BVerfG anticipates in its order for reference. In other words, when cases Of course, the actions of these high courts are the rethat touch upon issues of competence or German sult of a deep frustration and concern over their futunational identity are at stake, the BVerfG wants the re jurisdictional role in general, a feature that is parCourt of Justice to rubberstamp the reasoning and ticularly true of those high solution that the BVerfG concourts who used to play a dosiders appropriate in solving minant role in the national lethe case, for that is the only way If the Court of Justice was gal and political scene. Seeing to conform its actions with the ever to transform itself into how the Court of Justice granational identity of the Federal Republic of Germany. the rubber-stamping court dually assumes a signi cant part of that power is a process that the BVerfG suggests, that these courts will not toleis approach myopically ignores that the national identity it would actually be imposing rate gracefully, sending the Shakespearean message that that the rebellious high courts the national identity of a they will not go gentle into are imposing on the Court of Member State on the rest that good night. Justice is the opposite to what the Treaties require in Article 4(2) TEU. If the Court of Justice was ever to comply with the invitation of the III - Seduction BVerfG and transform itself into the rubberstamping court that the BVerfG suggests, it would Finally, there is a small group of high courts that are actually be imposing the national identity of a Membe ing on a different strategy to sway the Court of ber State on the rest. When the Court of Justice deliJustice in their direction and at the same time revers a preliminary ruling in a case coming from Germain relevant in their roles as constitutional arbimany, it is not only acting as a jurisdiction in a Gerters. ey do not openly rebel, although they have man dispute: its ruling will have effects in all the set in the past their own limits to EU integration too. Member States and must decide considering this eir a itude a empts to nudge the Court of Justimultinational reality. By pressuring the Court of Jusce in a certain direction by raising concerns in ways tice into acting like a German court and following a that are realistic and assumable for the Luxembourg German sensitivity to the case, the BVerfG risks imcourt. Instead of imposing their own national view posing its own domestic notion of national identity

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pretation of the Charter that allowed the EU court to save face and, at the same time, put an end to the revolt taking place in the Italian court system. Taricco II con rmed the Corte Costituzionale’s intuitions and the Court of Justice agreed to tacitly overrule Taricco I. A mistake had been made, but instead of pressing the nuclear bu on at the domestic fore a civilized solution was construed successfully at the initiative of the Corte Costituzionale.

of how the law must be interpreted, they try to empathize with the Court of Justice and explore imaginative ways that facilitate a common and agreeable solution. However, although this strategy is handled with a silk glove, it hides an iron st inside, for the solutions that the Court of Justice is driven into are exactly the ones that the national high court had in mind from the start. Despite an exterior appearance of dialogue and deference to the Luxembourg court, the substance sways clearly in the direction envisaged by the national high court from the outset.

Only a few weeks ago we all a ended another masterclass from the same court, this time in the Consob case. I won’t go into the details of this preliminary reference, which has been nely analyzed by Mariana Martins Pereira in this Issue of the Weekend Edition. A brief reference will be made to the fact that, once again, an interpretation of a Directive that collided with the Italian Constitution was averted. In fact, the case-law of the Court of Justice in the eld of competition pointed to a direct collision, but this was avoided by developing a manageable interpretation of the Charter, as construed by the Corte Costituzionale in its order for reference. e Court of Justice agreed and the con ict was no more.

e undisputable master of this approach is the Italian Corte Costituzionale. In a series of judgments and orders for references delivered in recent years, it has developed a highly astute and eﬃcient modus operandi that balances national identity, the primacy of EU law and a reciprocal understanding of the principle of sincere cooperation. e precedents in the leading cases of Taricco I (3) & II (4) and, more recently, Consob (5), are a masterclass in the art of judicial dialogue among constitutional courts in Europe. Taricco I & II raised the issue of criminal legality, in particular when national procedural rules on timelimits are shortened and thus allow suspect cases of VAT fraud to become time-barred. When the Court of Justice ruled in Taricco I that these amendments breached EU law, chaos ensued in Italian courts. e Corte Costituzionale immediately referred the ma er to Luxembourg in a tone that only discretely revealed the annoyance of the Italian judges with the Luxembourg court’s ruling. In fact, the order for reference sent from the Palazzo della Consulta provided the Court of Justice with a reasonable inter-

What are the main features of this approach, so successful in its outcome and so subtle in its means? First, the orders for reference of the Corte Costituzionale are not construed as an open threat to the authority of the Court of Justice, in a take-it-or-leave-it fashion. Quite the contrary, the Corte invites the Court of Justice to engage in an analysis which is open-ended (as any legal discussion on a point of principle is) but with possible solutions available. e Corte does not assume that there is one correct solution available only (its own), but rather a variety

3. Taricco and Others (C-105/14, EU:C:2015:555). 4. M.A.S. and Others (C-42/17, EU:C:2017:936). 5. Consob (C-481/19, EU:C:2021:84).

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Pragmatic resignation has its benets, but it also leaves a national high court in a position of irrelevance. Revolt and frustration only lead to further disarray and more frustration

from asking further questions yet again in another preliminary reference, until a reasonable outcome is construed through dialogue. at is, in fact, what sincere cooperation is meant to be. When the Court of Justice does not reply in the expected way, that is not an example of a breach of loyalty from the Luxembourg court, as some authors supporting the rebellious approach have argued (6). It is exactly the recourse to the ultra vires solution that evidences, in all its crudeness, how sincere cooperation is not intended to work.

of options in which context, case-law and comparative examples have a role to play.

IV -

Second, the Corte never tells the Court of Justice that its prior decisions were wrong and in breach of the Italian Constitution. e Italian court knows be er than that and it avoids all references to the need to reconsider or review what has been previously se led in Luxembourg. At the most, the Corte hints at nuances that could be introduced to avoid further diﬃculties in the implementation of the case-law. By introducing these nuances, it opens the door to possible reinterpretations that could x the past or future wrongs caused by a ruling of the Court of Justice. Its a itude is constructive and critical, but always sensitive to the inherent diﬃculties that the Court of Justice faces when adjudicating in a multinational context.

ere are several ways to face the reality of fading judicial power. Pragmatic resignation has its benets, but it also leaves a national high court in a position of irrelevance, as a discrete observer watching events go by. Revolt and frustration only lead to further disarray and more frustration, adding insult to injury in a zero-sum game with no winners. It is seduction that shows the most virtuous approach of them all. By playing this card the Corte Costituzionale has proved that the Court of Justice can rectify and is willing to do so when issues of national identity are at stake. Even more so, the Court of Justice is ready to engage with national high courts in eshing the terms in which fundamental rights must be cons-

ird, the approach is made in a way that it aspires to never cease the discussion until a reasonable decision has been reached by both courts. ere is no nal decision at the national level that puts an end to the dispute, in contrast with the ultra vires doctrine, which puts an end to the ma er at the domestic level. On the contrary, the Corte Costituzionale’s approach suggests that if the answer it receives from Luxembourg is not satisfactory nothing will stop it 6. See Grabenwarter, C., Huber, P., Knez, J. and Ziemele, I., “ no 1 (2021), pp. 57-59.

e Consob Way

e seductive approach shows that the Court of Justice can and is willing to rectify when issues of national identity are at stake

e Role of the Constitutional Courts in the European Judicial Network”, European Public Law 27

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with shared legitimacy in which national high courts have voice (7). In contrast, disputes of fundamental rights are the natural fore for constructive dialogue through the preliminary reference procedure, in which the critical issues are fully portrayed, interpretative options are exchanged and, eventually, the Court of Justice decides.

trued, with the aim of avoiding constitutional conict. In that process, the Court of Justice is willing to engage in that interpretative effort hand in hand with the referring high court, showing that its sensitivity towards national identities is genuine and real. e contrast between diverging approaches also reveals that there is a stark difference between constitutional disputes concerning competence and those that deal with fundamental rights. While competence dispute se lement requires a binary assessment and results in a decision accepting or rejecting the Union’s jurisdiction to act in a certain ma er, fundamental rights litigation will always require complex balancing exercises of legal principle and moral values. It is difficult to articulate a cooperative dialogue among courts in ma ers of competence, while it is highly necessary when the dispute concerns fundamental rights. at is why competence litigation could be reinforced by the introduction of a mixed chamber in the Court of Justice, a fore in which the Kompetenz-Kompetenz is not le to one of the interested parties, but to a composite chamber

It is therefore not surprising that the masterclasses delivered by the Corte Costituzionale have all been focused on fundamental rights cases. at is the fore in which this wise and old institution has decided to engage in a constructive dialogue with the Court of Justice, in a way that it allows to actively lead the discussion across Europe, swaying the nal result in its own favor. Analysts that look at the Consob case-law will say in the future that this is not only the ruling of the Court of Justice, but of two high European courts working hand in hand. e Corte Costituzionale has shown its European counterparts the way. e Consob way.

7. Together with J.H.H. Weiler I have purported the creation of a Mixed Chamber in the Court of Justice to solve competence disputes, not as a de nitive solution to solve all constitutional con icts once and for all, but as a means to articulate a fore in which the Union and national voices decide jointly with high levels of legitimacy. Although this option is far from perfect (the perfect solution is, of course, a primacy clause in the Treaties and all national constitutions, something that is not politically realistic at this stage of integration) it contributes to lower the pressure on the Kompetenz-Kompetenz issue, particularly in disputes that concern the EU’s competence. See Weiler, J.H.H. and Sarmiento, D., “ e EU Judiciary A er Weiss – Proposing A New Mixed Chamber of the Court of Justice”, EU Law Live, 1 June 2020.

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Consob and the lessons learnt from the ‘Taricco saga’ Mariana Martins Pereira

cussion. It is also worth acknowledging that in Consob the ECJ did not speci cally mention those judgments. Nevertheless, while going through Consob, I could not avoid thinking about its relationship with the Taricco ‘saga’ and how it might have shaped the outcome of this case or, more broadly, the dynamics of the dialogue between the CC and the ECJ. erefore, I will turn to Taricco I and II to compare the questions for preliminary ruling posed back then with the reference made by the CC in Consob. I will then assess their impact on the answers given by the ECJ and nally underline the decisive role of the national judge within the EU judicial system.

I. Introduction On 2 February 2021, the Court of Justice of the European Union (‘Court’ or ‘ECJ’) issued a landmark judgment on the protection of fundamental rights in Europe and the relationship between the EU and Member States legal orders (2). is ruling is a good example of the desirable judicial dialogue between national courts and the ECJ, through the preliminary ruling procedure instituted by Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’). In fact, this was the second reference ever made by the Italian Constitutional Court (‘CC’), less than three years a er the rst one had been made in M.A.S. and M.B. (3)(also known as ‘Taricco II’). In that reference, both the CC and the ECJ showed their willingness to engage in the dialogue and accommodate the apparently con icting interests at stake. Taricco II is the a ermath of another reference, submi ed in 2015 by Tribunale di Cuneo (a rst instance court), where such dialogue was not so well-succeeded (Case C105/14 – Taricco (4), also known as ‘Taricco I’).

Consob also makes clear that EU law must necessarily be interpreted and applied taking into account the protection of fundamental rights, which is also part of EU law. e protection of fundamental rights is precisely the common denominator in the three legal orders that interact in the European space (and in Consob): the EU, the Member States and the system of the European Convention on Human Rights (‘Convention’). Although tensions are inevitable, it is submi ed that it is precisely the respect for fundamental rights that allows a ‘paci c’ coexistence.

Taricco I and II have been extensively debated in the literature and my purpose is not to engage in that dis-

1. LL.M. in Law and former trainee at the Court of Justice and at the European Court of Human Rights; currently a lawyer working on EU and ECHR Law ma ers in aspecialised law rm in Lisbon, Portugal. 2. Case C-481/19, Consob, EU:C:2021:84. 3. Case C-42/17, M.A.S. and M.B, EU:C:2017:936. 4. Case C-105/14, Taricco and Others, EU:C:2015:555.

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lity assessing the validity of EU law (6). Resorting to the preliminary ruling procedure, it asked the ECJ whether Articles 14(3) of Directive 2003/6 and 30(1)(b) of Regulation 596/2014 could be interpreted as permi ing Member States not to penalise individuals who refuse to answer questions which might establish their liability for an oﬀence that is punishable by administrative sanctions of a ‘punitive’ nature (7). Only in the event of the rst question being answered in the negative, the CC further asked whether the said EU law provisions were compatible with Articles 47 and 48 of the Charter, also bearing in mind the Convention, the case-law of the European Court of Human Rights (‘ECtHR’) and the constitutional traditions common to the Member States.

II. Case C-481/19 – Consob 1.

e scope of the right to silence

In the course the national proceedings at hand, concerning an administrative oﬀence of insider trading, the competent authority (Consob) imposed on the accused (‘DB’) a ne of EUR 50 000 for his refusal to answer questions at a hearing to which he had been summoned. Market abuse is regulated at EU level through Directive 2003/6 (repealed by R eg ulation 596/2014). Pursuant to Article 14(3) and Article 30(1)(b) of Regulation 596/2014, Member States shall determine administrative sanctions for failure to cooperate with an investigation, including questioning to obtain information (5). us, the national rules underlying the ne imposed sought to implement those EU law provisions.

From the outset, the ECJ noted that, as prescribed by Articles 6(3) TEU and 52(3) of the Charter, to ascertain the scope of the right to remain silent, it would have to take account of Article 6 of the Convention, as interpreted by the ECtHR (8). In that regard, it recalled that, although that provision does not speci cally refer to the right to remain silent in criminal proceedings, such right is indisputably re-

e case reached the CC, which considered that the constitutionality assessment of the national rules concerned would require interpreting and possibi-

5. See paras 51 and 53 of the judgment. 6. See para 23 of the judgment. 7. See para 27 of the judgment. 8. See paras 36 and 37 of the judgment.

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outcome, thus extending the application of the right to silence to administrative proceedings which are not ‘criminal in nature’. Allegedly, such declaration might also pave the way for the extension of other Charter rights to administrative proceedings, such as the ne bis in idem principle (Article 50 thereof). If such issue is raised in national proceedings, it might reach the ECJ through the preliminary ruling procedure and invite the la er to specify other circumstances under which Charter rights might apply in the context of administrative proceedings per se.

cognised by the case-law of the ECtHR as fundamental for the right to a fair trial (9). Furthermore, the ECJ underlined that such right is not limited to statements that directly incriminate the person concerned but also covers information about facts which may ‘subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed…’. (10) e protection aﬀorded by the right to remain silent thus appeared to cover a situation such as the one at stake in the main proceedings. Notwithstanding, the ECJ recalled that the application of that principle to administrative proceedings depends on the so-called ‘Engel / Bonda criteria’, which determine whether they are to be considered ‘criminal in nature’ (11). While it is for the national court to ascertain whether those requirements are met, the Court acknowledged that some of the administrative sanctions imposed by Consob appear to pursue a punitive purpose and to present a high degree of severity (12).

In any event, by particularly highlighting cases where statements of the accused are used in future criminal proceedings, the Court might have precisely increased the level of protection aﬀorded by Article 50 of the Charter. I recall here the recent case-law of the ECJ on the so-called ‘double-track’ enforcement regimes, where it has accepted that, subject to certain conditions (14) (analysed in light of Article 52(1) of the Charter), Member States can simultaneously impose administrative and criminal penalties to ght against illegal conduct such as tax evasion or market abuse, without infringing ne bis in idem. (15)

In that context, the ECJ importantly added that the right to silence could still be applicable, even though the proceedings brought against DB did not ful ll the conditions to be ‘criminal in nature’. (13) It would particularly be the case if DB’s statements could be used in future criminal proceedings brought against him. e Court’s wording suggested that other circumstances might deserve a similar

is line of case-law has been subject to criticism, namely by lowering the protection oﬀered by the ne bis in idem principle (16). In Consob, by accepting that the person concerned may rely on the right to remain silent in the course of administrative procee-

9. See para 38 of the judgment. 10. See para 40 of the judgment. 11. See para 42 of the judgment. 12. See para 43 of the judgment. 13. See para 44 of the judgment. 14. Case C-524/15, Menci, para 63. 15. Cases C-537/16, Garlsson Real Estate and Others, EU:C:2018:193; C-524/15, Menci, EU:C:2018:197; and C-596/16 and C-597/16, Di Puma and Zecca, EU:C:2018:192. Concerning market abuse, see Case C-596/16 and C-597/16, Di Puma and Zecca, paras 26 and 42. 16. Dissenting opinion of Judge Pinto de Albuquerque in ECtHR, A and B v. Norway, Appl. Nos. 24130/11 and 29758/11, judgment of 15 Nov. 2016; see also Opinion of Advocate General Campos Sánchez-Bordona in case C-524/15, Menci, EU:C:2017:667, paras 55–56 and 69–73. In the literature, see Mirandola andLasagni, “ e European ne bis in idem at the Crossroads of Administrative and Criminal Law”, 2 Eucrim (2019), 126-135.

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imply his liability, does not preclude an interpretation pursuant to which such obligation does not apply in those circumstances.

dings, even if they do not ful l the conditions to be considered criminal in nature, the Court took a decisive step to protect the fundamental rights of the accused of administrative oﬀences. In fact, the statements of the accused in the course of administrative proceedings might not be used against him in the context of criminal proceedings. is is all the more important since, a er the adoption of Regulation 596/2014 and Directive 2014/57, double-track systems are not only in principle accepted by the ECJ but also imposed by the EU legislature itself (17).

is interpretation seems nothing but logical since, by its very nature, in no way could EU secondary law be interpreted as waiving an obligation deriving from EU primary law. It thus follows that there is no need for the former to speci cally rule out a possibility which would run counter a Charter right. is is all the more so since, as also underlined by the ECJ, the recitals of both directives emphasise their respect for fundamental rights and observance of the principles recognised in the Charter.

2. Compatibility of the relevant provisions of the Directives with the Charter

us, the Court concluded that the contested provisions could be interpreted in conformity with the requirements of Articles 47 and 48 of the Charter and, accordingly, their validity was not called into question (19).

Considering the scope of the right to remain silent, as well as the punitive purpose and the severity of the sanctions imposed by Consob, the ECJ concluded that Charter Articles 47 and 48 preclude the imposition of a ne such as the one at stake in the main proceedings. It then went on to assess whether the relevant provisions of EU secondary law could be interpreted consistently with the right to remain silent (18).

III. Relationship with Taricco I and II In Taricco I (2015), the ECJ was essentially asked whether, in order to protect the nancial interests of the EU (adequate collection of VAT and ght against tax evasion), a national court may disapply national criminal law provisions on limitation periods to prevent various oﬀences related to VAT from becoming time-barred (20).

In undertaking such assessment, the ECJ duly recalled that EU secondary law shall be interpreted, as far as possible, in conformity with the Charter. In its view, the wording of the relevant provisions of both directives, albeit not expressly ruling out the Member States’ obligation to impose penalties also when the accused refuses to grant information that could

Considering the content of the question posed, one might argue that the national court was reluctant to side with the de facto impunity resulting from the na-

17. See, in this regard, Regulation 596/2014, Article 30(1). See also Luchtman,“ e ECJ’s recent case law on ne bis in idem: Implications for law enforcement in a shared legal order”, 55 CML Rev. (2018), 1717-1750, at 1737, 1739 and 1740. 18. See para 49 of the judgment. 19. See para 56 of the judgment. 20. See case C-105/14, Taricco and Others, para 34. e referring court asked other questions concerning the compatibility of the national rules on limitation periods with Articles 101 TFEU, 107 TFEU and 119 TFEU. Notwithstanding, the ECJ considered that the national rules at stake could not be assessed in light of those Treaty provisions.

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ked the ECJ: ‘are you really tetional provisions and asked the lling me that lower courts shall reECJ whether EU law could ‘legie manner in which the frain from applying national letimise’ its refusal to apply them. Moreover, it did not seek to cla- questions for a preliminary gislation on limitation periods of criminal offences in order to rify whether the eventual disapruling are put by the natio- comply with EU law? Does it plication of the limitation period would con ict with the principles nal court and/or the way hold true even where such solution would run counter to the Itaof legality and non-retroactivity in which the Court perlian Constitution?’. of criminal law (21). e ECJ ‘acceives them can in uence cepted the challenge’ and declaOnce again, the ECJ ‘accepted red that the national rules at stake, the case’s outcome the challenge’ and understood by preventing the imposition of that a ‘subtle adjustment’ (25) of effective and dissuasive penalties in a signi cant number of cases of Taricco I was necessary. In so serious fraud affecting EU nancial interests, could doing, it con rmed that EU law requires national have an adverse effect on the ful lment of Member courts to disapply national provisions which have as States’ obligations under Article 325(1) and (2) their effect the prevention of application of effective TFEU. erefore, it ruled that ‘the national court and deterrent criminal penalties in a signi cant nummust give full effect to Article 325(1) and (2) ber of cases of serious fraud affecting EU nancial TFEU, if need be by disapplying the provisions of interests, ‘unless that disapplication entails a breach of national law the effect of which would be to prevent the principle that offences and penalties must be de ned the Member State concerned from ful lling its obliby law because of the lack of precision of the applicable gations under Article 325(1) and (2) TFEU’ (22). law or because of the retroactive application of legislation imposing conditions of criminal liability stricter Unsurprisingly, the ‘elephant in the room’ question than those in force at the time the in ingement was comof how to harmonise such ruling with the principles mi ed’. (26) (emphasis added). of legality and non-retroactivity of criminal law - protected by the Italian Constitution, part of the constiIn Consob, as described in greater detail above, the tutional traditions common to the Member States CC essentially asked whether the relevant EU direcand guaranteed by Charter Article 49 (23), eventives could be interpreted as allowing national auttually arose. e question was posed to the CC, horities not to penalise those who refuses to answer which stayed the proceedings and resorted to the questions in proceedings aimed at establishing their preliminary ruling procedure. rough its quesliability. tions (24) the CC essentially (and guratively) as-

21. Case C-42/17, M.A.S. and M.B., paras 25-28. 22. Case C-105/14, Taricco and Others, para 58. 23. Case C-42/17, M.A.S. and M.B., paras 51-52. 24. Case C-42/17, M.A.S. and M.B., para 20. 25. J. L. Vilaça, “ e Judgment of e German Federal Constitutional Court and of the Deaf?”, p. 6. Article available here: (last visited 24 Fev. 2021).

e Court of Justice of the European Union – Judicial Cooperation or Dialogue

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that they would keep the prerogative of assessing whether EU law respected the catalogue of fundamental rights protected by their constitutions. ey would nonetheless refrain from doing so ‘as long as’ the EU continued to ensure an adequate level of fundamental rights protection.

e preceding analysis aimed at showing that the manner in which the questions for a preliminary ruling are put by the national court and/or the way in which the Court perceives them can in uence the case’s outcome. In fact, while the national court in Taricco I showed a very deferential a itude towards the EU’s nancial interests, the CC in Taricco II recalled that those interests must not aﬀect the respect for fundamental rights, protected by the Italian Constitution. In Consob, faced with the potential con ict between national rules implementing EU secondary law and fundamental rights enshrined in the Charter, the Convention and the Italian Constitution, the CC asked the ECJ if the contested provisions could be interpreted in a manner consistent with fundamental rights. e ECJ answered in the aﬃrmative and the potential con ict was avoided.

More recently, judgments like Melloni or Taricco I revived the discussion of whether an adequate level of fundamental rights protection is ensured in the EU, especially when compared to domestic constitutions. Opinion 2/13, (30) where the ECJ aﬃrmed the need to preserve the autonomy and integrity of EU law, as well as its exclusive competence to interpret and assess the validity of EU law, has also been criticised. Without seeking to underestimate those moments of tension that have underpinned the evolution of the ECJ’s case-law on fundamental rights, it is also fair to highlight numerous judgments, namely regarding the four freedoms or asylum law, where the Court has pushed for an increase in the protection of fundamental rights (31). In certain crucial moments it has taken the necessary steps to ensure the adequate level of protection of fundamental rights, in line with the Convention and the case-law of the ECtHR, within the scope of application of EU law (32).

IV. General comments 1. e role of the ECJ, the protection of fundamental rights and the principle of consistent interpretation Over the years, the EU and its judicature have been occasionally criticised for their excessive focus on the so-called Union ‘economic interests’, at the expense of fundamental rights protection. In the 60’s and 70’s, in well-known rulings, both the German (27) and Italian (28) Constitutional Courts warned

Similarly, Consob makes clear that the respect of fundamental rights is part of the EU’s legal order. And

27. Decision of 18 October 1967, judgment of 29 May 1974, BverfG 37, para271 (‘Solange I’) and judgment of 22.10.1986, BverfG 73, para 339 (Solange II). 28. Judgment n. 183, Frontini, 27 December 1973, judgment n. 170, Granital, 8 June 1984and judgment of n. 232, 21 April 1989. 29. Case C-399/11, Melloni, EU:C:2013:107. 30. Opinion 2/13, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, EU:C:2014:2454. 31. Cases C-29/69, Stauder v Stadt Ulm, EU:C:1969:57, para 7; C-11/70, Internationale Handelsgesellscha , EU:C:1970:114, para 4; C-4/73, Nold KG v Commission, EU:C:1974:51, para 13; C-36/75, Rutili v Ministre de l'intérieur, ECLI:EU:C:1975:137, para 32; and, more recently, C-36/02, Omega, EU:C:2004:614, paras 33-35; and C-208/09, Sayn-Wi genstein, EU:C:2010:806, para 52, 89 and 93. 32. See, among others, casesC-411/10, N. S. and Others, EU:C:2011:865 and C-578/16, C. K. and Others, EU:C:2017:127.

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Respect for fundamental rights must be a pre-condition for the adoption of EU legislation, as much as assuring that the Union has competence or that the adequate procedure for adoption was observed

ple of legality of criminal law, which is a general principle of EU law (33). In the case at hand, as recalled by the Council and the Advocate-General, the fact that the contested provisions are dra ed in general and unconditional terms does not mean that exceptions made with a view to respecting a fundamental right cannot be introduced by way of interpretation. Compelling national courts to protect Union nancial interests, even if it entailed breaching fundamental rights, would not only be at odds with national constitutions but also with EU law. However, if national courts bear this in mind and resort to the preliminary ruling procedure, many con icts can be avoided.

this is exactly why the principle of consistent interpretation was the right tool to frame the issue (by the CC) and to answer the questions (by the ECJ). In principle, it must be possible to interpret EU secondary law consistently with the Charter. If that is the case, the former’s validity is not questioned. Only in the unlikely scenario that a consistent interpretation is not possible shall the validity of those EU secondary law provisions be questioned.

2. e preliminary ruling procedure and the importance of the role played by the national courts in the judicial dialogue

In essence, respect for fundamental rights must be a pre-condition for the adoption of EU legislation, as much as assuring that the Union has competence or that the adequate procedure for adoption was observed. Indeed, Union economic interests cannot be above the respect for fundamental rights. In Taricco II, the nancial interest at stake derived from EU primary law (Article 325 TFEU) and yet the ECJ duly emphasised the need to respect the princi-

More broadly, Consob can also be seen as contributing to the peaceful coexistence of three legal orders: of the EU, of the Member States and of the Convention.

Compelling national courts to protect Union nancial interests, even if it entailed breaching fundamental rights, would not only be at odds with national constitutions but also with EU law

33. Case C-42/17, M.A.S. and M.B., para 52. 34. See para 36 of the judgment.

Starting by the la er, the Court took this opportunity to recall that fundamental rights recognised by the Convention constitute general principles of EU law and that the rights contained in the Charter which correspond to rights guaranteed by the Convention shall have the same meaning and scope as those laid down by the Convention (34). Consequently, when interpreting Charter Articles 47 and 48, Article 6 of the Convention, as interpreted by

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the ECtHR, shall function as the minimum threshold of protection’ (35). e Court thus de ned the scope of the right to silence essentially relying on the case-law of the ECtHR (36).

tion of the ne bis in idem principle, in so far as there is no ‘bis’. In contrast, the ECJ has considered that double-track systems constitute a limitation of Article 50, thus subject to the proportionality test provided for in Article 52(1). Such a deviation from the ECtHR’s case-law and the consequent application of the proportionality test will Consob can also be seen as allow the ECJ to keep under close scrutiny double-track contributing to the peaceful systems applied in the national legal systems, assuring that pecoexistence of three legal nalties against market abuse reorders: of the EU, of the main eﬀective, proportionate and dissuasive (40). Member States and of

is approach contrasts with other judgments, where the Court, despite recalling the wording of Articles 6(3) TEU and 53(2) of the Charter, nonetheless declared that it would undertake its analysis ‘in the light of the fundamental rights guaranteed by the Charter’ (37). In fact, in Menci and the Convention Turning to the relationship betGarlsson, the Court granted inween EU and national law, secreased importance to the fact veral remarks are due. From the outset, the role of that the Convention does not constitute, for as long the CC and its eﬀorts to take part of the judicial diaas the EU has not acceded to it, a legal instrument logue with the ECJ cannot be underestimated. e which has been formally incorporated into EU law. way in which it posed the questions and exposed the erefore, and in order to preserve the autonomy circumstances and the legal background of the case both of Union law and of the ECJ, the examination paved the way for the ECJ to assess the issue. of the question referred should be undertaken in the light of the fundamental rights guaranteed by the In this regard, it is worth recalling that, according to Charter (38). well-established case-law, the referring court is entirely responsible for determining the facts of the case However, it is submi ed that in Menci, Garlsson and in the main proceedings, which are relevant for the Di Puma, the ECJ actually introduced a higher stanpurposes of its reference for preliminary ruling. dard of protection of Charter Article 50, when comAlthough the ECJ may pose questions to the natiopared to the preceding ECtHR’s judgment in A and nal court, it is ultimately for the la er to provide the B v. Norway (39). In fact, in the la er case, the ECJ with the relevant facts and legal context of the ECtHR considered that the combination of proceequestions it is asking, allowing the former to give a dings, provided that they are suﬃciently connected useful answer (41). Moreover, as recalled by Advocain substance and time, does not amount to a limita35. See para 37 of the judgment. 36. See paras 38-40 of the judgment. 37. Case C-537/16, Garlsson Real Estate and Others, EU:C:2018:193, paras 24-26. 38. Case C-537/16, Garlsson Real Estate and Others, para 26; and Case C-524/15, Menci, paras 22-24. See also Opinion of Advocate General Cruz Villalón in case C-617/10, Åkerberg Fransson, EU:C:2012:340, para 87. See also Luchtman, op. cit. supra note 16, at 1729-1732. 39. ECtHR, A and B v. Norway, Appl. Nos. 24130/11 and 29758/11, judgment of 15 Nov. 2016. 40. Luchtman, op. cit. supranote 16, at 1748. 41. Case 42/17, para 24. See also Case C-349/17, Eesti Pagar, EU:C:2019:172, para 50.

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traditions common to the Member States. In doing so, the CC duly undertook his role, not only of a guardian of the Italian Constitution, but also as guardian of EU law’s autonomy, integrity and uniform interpretation within the limits of its jurisdiction. In my opinion, this is precisely how the judicial dialogue through the preliminary ruling procedure shall function. Each party being duly aware of its competences, respecting the sphere of competences of the other (assigned by the Treaties) and actively working together towards the common goal of building a coherent system of constitutional pluralism (44) or a ‘Constitutional culture community’. (45)

te-General Pikamäe, the Court has to be very careful in reformulating the questions posed, ‘to avoid encroaching on the jurisdiction of the referring court’ (42). In a nutshell, the outcome of a preliminary ruling is highly dependent on the cooperation of national courts (43). In the present case, as discussed in the previous section, the CC basically asked the ECJ whether EU law, more speci cally the relevant provisions of the directives at stake, allows a national court not to penalise natural persons who, in the context of an investigation carried out in order to protect Union interests, refuse to provide that authority with answers that are capable of establishing their liability. Only if this question would be answered in the negative, the CC asked whether the said provisions were compatible with Charter Articles 47 and 48 of the Article 6 of the Convention and the constitutional

In this regard and as a nal remark, it might be useful to brie y consider the PSPP judgment of the German Constitutional Court (‘GCC’) of May 2020, where it declared the Weiss (46) judgment of the ECJ (and the European Central Bank’s Public Securities

Consob tends to show that the EU’s judicial architecture is solid enough to stand several localised judicial earthquakes such as the one that took place in May 2020 following the Weiss judgment

42. Opinion of Advocate General PriitPikamäe in case C-481/19, Consob, para 43. 43. is can be seen in Case C-637/17, Cogeco Communications, EU:C:2019:263 and Taricco II, para 28. 44. Wind and Weiler (Eds.), European Constitutionalism Beyond the State (Cambridge, Cambridge University Press, 2003); Maduro, “ ree Claims of Constitutional Pluralism”, in Avbelj. And Komárek, (Eds.),Constitutional Pluralism in the European Union and Beyond(Hart, 2012). 45. To use the expression of Advocate General Pedro Cruz Villalón, in case C-62/14, Gauweiler, EU:C:2015:400, para 61, quoting Andreas Vosskuhle, until very recently (6 May) President of the BVerfG. 46. Case C-493/17, Weiss and Others, EU:C:2018:1000.

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hquakes such as the one that took place in May 2020 Purchase Programme) to be ultra vires. In doing so, following the Weiss judgment. the GCC chose the path of ‘judicial confrontation’, renouncing to any further dialogue. Indeed, as results from consistent case-law, a ruling of the ECJ V. Conclusion within the preliminary ruling procedure is binding upon the referring court (47) and any other national One of the tasks of the ECJ is to ensure that EU law court (48) across Europe. In case of doubt or disais enacted, interpreted and implemented respecting greement with the ECJ’s ruling, the referring court the fundamental rights enshrined in the Charter. has always the option (or even the duty) to refer a is may create constraints to EU and national autnew question for preliminary ruling, based on new horities and, in certain circumstances, limit the full arguments or considerations (49). In its PSPP judgeﬀectiveness of EU secondary law. ment, the GCC ignored that duty, as well the ECJ’s exclusive compeTo preserve the autonomy, National courts also play a decisitence to interpret and assess the vave role in their respective jurisdicintegrity and uniformity tions, scrutinising the implemenlidity of EU law.

of EU law, questions of tation of EU law by national autIn the a ermath of this judgment, horities. Nevertheless, to preserve its interpretation and some commentators feared its pothe autonomy, integrity and unitential systemic eﬀect ( 5 0 ) . validity must remain formity of EU law, questions of its Arguably, it could encourage other under the ECJ’s exclusive interpretation and validity must reconstitutional courts to boyco main under the ECJ’s exclusive jujurisdiction the ‘keystone of the EU judicial risdiction. system’ (51), either by refusing to refer a question for preliminary ruling or to abide by Con icts between diﬀerent legal interests happen in the ECJ judgments, relying on their ‘national idenany jurisdiction. Naturally, in a multileveled one, tity’ (Article 4(2) TEU). In Consob, the CC refused they tend to occur more frequently. Consob gives soto engage in such destructive behaviour, which me insight on how to overcome them. National could have meant declaring the unconstitutionality courts shall respect the boundaries of their jurisdicof the contested national provisions and implicitly tion, resort to the preliminary ruling procedure as considering that the relevant provisions of EU semandated by Article 267 TFEU and abandon the dicondary law were incompatible with the right to sichotomy EU interests/fundamental rights, to the exlence. Instead, it rightly put the question to the ECJ, tent that the la er are part of the former. e ECJ, as therefore respecting the la er’s exclusive compethe EU’s “constitutional court”, must ensure strict tence established by the Treaties. Fortunately, Conobservance of the Charter. sob tends to show that the EU’s judicial architecture is solid enough to stand several localised judicial eart47. Cases C-52/76, Benede i/Munari,EU:C:1977:16, para 26; andC-446/98, Fazenda Pública, EU:C:2000:691, para 49. 48. Cases C-212/04, Adeneler and Others, EU:C: 2006:443, para 122; and C-231/06, Jonkman, EU:C:2007:373, paras 38-39. 49. J. L. da Cruz Vilaça, op. cit. note 24,p. 16. 50. J. L. da Cruz Vilaça, op. cit. note 24, mentioned a risk of ‘constitutional disaggregation’ (p. 1). 51. Case C-824/18, A.B. and Others, EU:C:2021:153, para 90.

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News Highlights Week 12 to 16 April 2021

Legal Oﬃcer position at European University Institute Monday 12 April

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e European University Institute is seeking a Legal Officer who will join the Office of the Legal Advisor and Data Protection Officer. e Legal Officer will provide legal analysis, advice and support on all legal and data protection ma ers, ensuring a sound legal environment for the EUI’s overall functioning.

Commission proposes amendment to VAT Directive to exempt vital goods and services distributed by the EU in times of crisis Monday 12 April

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General Court to hear action for annulment against appointment of Portuguese Delegated Prosecutor at EPPO: action published Monday 12 April

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e General Court will hear an action seeking the annulment of Council Implementing Decision 2020/1117, appointing Mr José Eduardo Moreira Alves d’Oliveira Guerra as European Prosecutor of the European Public Prosecutor’s Oﬃce (EPPO). e decision had raised concerns over Mr Guerra’s ties to the Portuguese prime minister and the ruling party.

ClientEarth lodges action before General Court on document access related to sheries controls

e European Commission has presented a proposal to amend the VAT Directive in order to exempt imports of vital goods and services that are distributed by the EU in times of crisis. e proposal responds to the situation faced by the Commission during the early outbreak of the COVID-19 pandemic, where the EU struggled to secure key medical supplies and seeks to eliminate VAT as a cost factor in these purchases.

Monday 12 April

Council extends human rights sanctions regime over Iran

Commission publishes Communication on the adjustment of lump sum and penalty payments in infringement proceedings following UK withdrawal

Monday 12 April

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e recast Directive (2021/555) codifying the rules on control of the acquisition and possession of weapons in the EU, as they have been amended many times, was published.

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Environmental organization ClientEarth has lodged an action for annulment against an implied decision of the European Commission refusing it access to certain requested documents related to sheries controls.

Tuesday 13 April

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e European Commission has published a Communication on the readjustment of the calculation for a lump sum and penalty payments in infringement proceedings, with the latest calculation of the ‘n factor’ following the withdrawal of the UK from the EU.

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Pending preliminary ruling on the scope of the Directive of Electronic Commerce concerning tax obligations Tuesday 13 April

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e Belgian Constitutional Court has lodged a request for a preliminary ruling on the interpretation of Article 1(5) of the Directive on Electronic Commerce and of the term ‘ eld of taxation’, which is excluded from the scope of such Directive.

Court of Justice to hear case on level of protection of Quali cation Directive in the event of serious harm in armed conict Tuesday 13 April

Implementing ECtHR judgments and decisions: Annual Report 2020 Tuesday 13 April

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e Commi ee of Ministers of the Council of Europe (CoE) has published its 2020 Report on the Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights (ECtHR), showing progress in most CoE’s Member States in spite of the COVID-19 pandemic, but pointing to the need for further eﬀorts in this context.

Council of Europe: guidelines to improve national systems of legal aid in the elds of civil and administrative law Tuesday 13 April

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e Commi ee of Ministers of the Council of Europe (CoE) has adopted a set of guidelines for the 47 CoE’s Member States, which aim to provide generic solutions that can make national legal aid schemes in the areas of civil and administrative law more eﬃcient and eﬀective, without changing their overall organisational framework.

e Court of Justice will rule in F, A, G, H, I v Staatssecretaris van Justitie en Veiligheid (C-579/20) on the level of protection of Article 15(c) of the Quali cation Directive, speci cally on whether the aﬀorded protection is provided only in an exceptional situation where the degree of violence reaches such a high level in which the sole return of the civilian to the country or region would oﬀer substantial grounds for believing that he or she would face ‘a real risk’ to be subject to serious harm.

Commission initiates investigation on the acquisition of Trimo by Kingspan

Council adopts position on Single Market programme for 2021-2027

Tuesday 13 April

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e European Commission has initiated an in-depth investigation into the acquisition of Trimo arhitekturne rešitve, d.o.o. by Kingspan Group plc in order to determine whether the transaction could lead to negative competition eﬀects, particularly concerning a potential high accumulation of combined market shares and the removal of competitive restraints.

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e Council of the EU has announced it has adopted its rst reading position on the proposed Single Market Programme for 2021-2027, a dedicated 4.2 billion euros programme that seeks to empower and protect consumers and enable small and medium-sized enterprises (SMEs) to bene t from the EU single market. e Council’s position does not vary signicantly from the Commission’s proposal.

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Commission releases Next Generation EU funding strategy

ECHA proposes seven substances for authorisation

Wednesday 14 April

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e European Commission has informed today of the funding strategy it will follow to raise the 800 billion euros comprised in Next Generation EU. It intends to follow a ‘diversied funding strategy’ that seeks to achieve both the large funding needs of the programme as well as a low cost and execution risk in the borrowing of funds.

e European Chemicals Agency has recommended that the European Commission adds seven substances to the Authorisation List, all of them considered to be harmful for the environment and/or for human health. ree of the substances approved (D4, D5 and D6) are cyclosiloxanes.

General Court dismisses three actions by Ryanair challenging COVID-19 State aid schemes

Commission launches coordinated control programme for 2022-2024 to ensure compliance with maximum residue levels of pesticides

Wednesday 14 April

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e General Court has dismissed three actions brought by Ryanair challenging various Commission decisions approving State aid schemes by Denmark, Sweden and Finland in support of airlines to compensate for the COVID-19 pandemic.

Wednesday 14 April

Court of Justice to rule whether DAC3 violates right to a fair trial in respect of lawyers’ reporting obligations

ECA recommends accelerating deployment of charging infrastructure to boost electric mobility

Wednesday 14 April

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e Commission has launched an EU-wide coordinated multiannual control programme for Member States to ensure compliance with maximum residue level of pesticides and to assess the consumer exposure to pesticide residues in and on food of plant and animal origin.

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e Court of Justice will hear a case on the compatibility of the right to a fair trial and to respect for private and family life under the Charter with the obligation on a lawyerintermediary who wishes to invoke professional secrecy, to notify the other intermediaries involved of their reporting obligations under the DAC3 Directive.

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e European Court of Auditors has found in a report that the deployment of infrastructure for charging electric vehicles in the EU is still a long way from reaching its target of 1 million charging points by 2025 set in the European Green Deal. It also found that the EU lacks an overall strategic roadmap for electro-mobility.

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Court of Justice’s Grand Chamber rules that a mere payment of compensation without a declaration of the existence of discrimination does not suﬃce to protect discrimination victims

Results of ECB public consultation on digital euro published ursday 15 April

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e European Central Bank (ECB) published a report laying down the main ndings from its public consultation on a digital euro, showing that privacy is by and large the most important concern of a digital euro for both citizens and professionals.

ursday 15 April

e Grand Chamber of the Court of Justice has just delivered its judgment in Braathens Regional Aviation AB (C-30/19), nding that that Articles 7 and 15 of Council Directive 2000/43, read in the light of Article 47 of the Charter, must be interpreted as meaning that a person who considers himself or herself subject to discrimination and seeks compensation has the right to have a court examine whether, and, where appropriate, nd that, that discrimination has occurred.

Court of Justice: asylum applicants must be able to plead subsequent circumstances to the adoption of a transfer decision ursday 15 April

Labour reserve system including public servants of retirement age is compatible with EU law, rules Court of Justice

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e Grand Chamber of the Court of Justice has delivered its judgment in État belge (C-194/19), nding that under Article 27 of the Dublin III Regulation and Article 47 of the Charter, applicants for international protection must be able to plead subsequent circumstances to the adoption of a transfer decision which are decisive for the correct application of said Regulation.

ursday 15 April

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In Olympiako Athlitiko Kentro Athinon (C-511/19), the Court of Justice ruled that EU law does not preclude national legislation under which public-sector employees, who over a particular period of time satisfy the conditions to receive full pension, are placed under a labour reserve system until the termination of their contract.

AG Bobek advises the Court of Justice to revisit its CILFIT case law on the duty to make references for preliminary rulings ursday 15 April

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AG Tanchev: two new chambers of Polish Supreme Court are not independent where judges are appointed breaching national law

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Advocate General Bobek advised in his Opinion in Consorzio Italian Management e Catania Multiservizi (C-561/19), suggesting that the Court of Justice revisit its CILFIT and Others case law (C-283/81). According to the Opinion, the duty to refer under the third paragraph of Article 267 TFEU and the exceptions to it should be interpreted in a way that re ects the needs of the current EU law judicial system, and so that they can then be realistically applied and enforced.

ursday 15 April

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Advocate General Tanchev delivered two parallel Opinions in Grand Chamber cases W. Ż. (C-487/19) and Prokurator Generalny (C-508/19), advising the Court to rule that the new special chambers of the Polish Supreme Court may not be regarded as an independent court or tribunal where the appointment of their judges has agrantly violated national law governing judges’ appointments, when those rules are interpreted along with Article 19(1) TFEU.

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Court of Justice rules that access to environmental information under EU law does not apply to court les ursday 15 April

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ursday 15 April

In Friends of the Irish Environment (C-470/19), the Court of Justice has ruled that the obligation imposed by Directive 2003/4 and by the Aarhus Convention concerning the granting of access to environmental information to members of the public upon request, does not apply to information contained in court les.

Court of Justice clears way for aggregated sentences to consider sentences imposed in another Member States

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Advocate General (AG) Campos Sánchez-Bordona delivered his Opinion in Klaipėdos regiono atliekų tvarkymo centras (C-927/19), suggesting the Court to rule that Articles 21, 50 and 55 of Directive 2014/24 do not necessarily require the contracting authority to provide to a participant in a procurement procedure who is challenging before that authority the la er’s evaluation of tenders all of the information contained in the tender submi ed by the selected tenderer.

ursday 15 April

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e Court delivered its judgment in AV (Jugement global) (C221/19), nding that a conviction imposed in a Member State can be considered in a proceeding concerning an aggregate sentence in another Member State, when said conviction is to be executed in that other Member State.

Jurisdiction in Maintenance Ma ers Regulation does not apply for decisions made pre-EU accession: judgment ursday 15 April

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Advocate General Bobek delivered his Opinion in Fédération bancaire ançaise (FBF) v Autorité de contrôle prudentiel et de résolution (ACPR) (C-911/19), in which he reasons that the 2016 EBA’s Guidelines on POG must be declared invalid, because their subject ma er and content do not fall within the scope of the legislative acts referred to in Article 1(2) of EBA’s founding Regulation 1093/2010.

AG Campos Sánchez-Bordona’s Opinion on protection of con dential information provided in a public procurement procedure ursday 15 April

AG Bobek: EBA’s 2016 Guidelines on POG should be declared invalid; preliminary reference proceedings and plea of illegality may be used to that end

EU law does not preclude alteration of Italian scheme incentivising solar energy production ursday 15 April

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e Court of Justice delivered its judgment in Department of Justice for Northern Ireland (C-729/19), where it held that the temporary derogation under Article 75(2) of Regulation 4/2009 does not apply to courts of Member States that were not members of the EU when the decisions were given.

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In Joined cases C-798/18 and C-799/18, Federazione nazionale delle imprese ele rotecniche ed ele roniche (Anie) and Others, the Court ruled that Article 3(3)(a) of Renewable Energy Directive 2009/28, Articles 16 and 17 of the Charter and Article 10 of the Energy Charter do not preclude a national law provision signi cantly reducing or delaying the payment of incentives already granted by law and de ned on the basis of corresponding agreements concluded with energy photovoltaic operators.

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Court of Justice rejects action for annulment of transitional period of the PulseFishing Ban Regulation ursday 15 April

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e Court of Justice has delivered judgment in Netherlands v Council and Parliament (C-733/19), rejecting an action for annulment brought by the Netherlands of the transitional period of the Pulse-Fishing Ban Regulation, which bans the use of trawling with an electric pulsed current.

Insights, Analyses & Op-Eds Young FIDE Seminar: overview of selected papers by Trajan Shipley

Contouring the legal eﬀects and judicial review of EU so law: Balgarska Narodna Banka

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by Dolores Utrilla

Insight into the Young FIDE Seminar taking place virtually on 12 May 2021, hosted by Leiden University. e Seminar is organised in the margins of the main FIDE event, a separate event open to all young EU law scholars and practitioners, whether or not they participate in the main FIDE Conference.

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Op-Ed on the signi cance of the Court of Justice’s ruling in the Balgarksa Narodna Banka case from a so -law perspective, looking into the dimension of judicial review of recommendations and other so -law instruments by the Court.