Weekend Edition no. 51 by eulawlive

Nº51

MARCH 13

2021

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A SPECIAL EDITION ON TRANSPARENCY IN EU LAW EDITED BY EMILIA KORKEA-AHO

PÄIVI LEINO-SANDBERG & MAARTEN HILLEBRANDT

CHALLENGING THE EU INSTITUTIONS ON TRANSPARENCY – WHAT IS THE ROLE OF ACADEMICS?

DANIEL FREUND

HOW CAN WE PROPERLY ENFORCE LOBBYING RULES IN BRUSSELS? FOR AN EU ETHICS BODY

EMILIA KORKEA-AHO

FOREIGN LOBBYING IN THE EUROPEAN UNION: THE LIMITS OF TRANSPARENCY REGULATION?

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EU Law Live Weekend Edition on Transparency 1

Emilia Korkea-Aho

model of ‘self-monitoring and enTransparency is one of the core forcement’ does not work. An EU values of the EU in the 21st cenEthics body would be the rst eletury, and internal and internae EU has neither a ment of a concrete plan to make tional developments in recent sure that transparency is more years have only highlighted its philosophy nor a than a nice-sounding concept. A importance. It is crucial that polilong struggle with the enforcetical actors ensure accountabiclear plan to realise ment of transparency rules has lity and transparency towards meant that hope has traditionally those on whose behalf they take transparency been pinned on civil society acdecisions. Unless citizens and ottors to take cases to courts. In the hers aﬀected by public decisions second contribution, Päivi Leinoknow who has been talking to Sandberg and Maarten Hillewhom, they can hardly be asked brandt bring in a new actor’s perspective, discussing to trust the decision-makers themselves. the role that academics could play in enforcing transparency rules. As their contribution demonsis Weekend Edition does not deny the crucial vatrates, this is not easy. It is not only the bureaucratic lue of transparency, but it tries to punch holes in the pushback from the institutions, but also the new robloated narrative that the EU has created around it. le that academics need to adopt. Finally, the EU e three pieces of this Weekend Edition a est to should itself start asking awkward questions about the fact that the EU has neither a philosophy (betransparency. One such question is whether there yond that transparency is crucial) nor a clear plan to are situations where transparency is simply not realise transparency and to discuss its limits and posenough. In the third contribution, Emilia Korkeasible future directions. aho discusses the limits of transparency in the context of non-EU lobbying and concludes that foreign Daniel Freund’s contribution reminds us that good lobbying is something that the EU should – taking rules in themselves do not make for be er conduct. its cue from the US – take more seriously than it has Rules on transparency and good governance need done so far. to be – just like any rules – enforced. And the EU’s

1. Associate Professor of EU Law and Legislative Studies at the University of Eastern Finland and Academy of Finland Research Fellow.

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How can we properly enforce lobbying rules in Brussels? For an EU Ethics Body Daniel Freund

Brussels is Europe’s lobbying capital. In a city where laws for more than 440 million citizens are being made, around 35,000 lobbyists try to in uence European policy in the interests of their clients. Lobbying might have a bad reputation. But in itself it is not a bad thing, as long as it is transparent and follows the rules. In order to prevent hidden in uence, con icts of interests or even EU officials or politicians changing sides and becoming lobbyists to represent private interests, there are rules in place. Some lobby meetings must be made public. Former European Commissioners must adhere to ‘coolingoff periods’. e rules regulating the conduct of elected and unelected officials in Brussels vis-á-vis representatives of private interest are among the best in Europe. However, there is a y in the ointment.

Good rules in themselves do not automatically make for be er conduct Union’s ethical framework. As every institution reviews itself, rules are fragmented. Eventually, this creates the absurd situation that (former) colleagues judge and evaluate the behaviour of those whom they used to share an office with. Fragmentation and lack of enforcement have created political scandals in the past. Former European Commission President José Manuel Barroso moved to the investment bank Goldman Sachs a er leaving his high-pro le position. He promised not to lobby his former colleagues. Only weeks later he broke this promise – and suffered no consequences. Since leaving the European Commission in December 2019, the former German Commissioner Günther Oe inger has taken up 14 subsequent jobs and founded his own consulting rm. Many of his new employers are registered lobbyists in Brussels. All this is happening during his ‘cooling-off ’ period of two years. e former Dutch Commissioner Neelie Kroes (responsible among other things for Digital Affairs) was already criticised during her term of office because of possible con icts of interest. Shortly

Good rules in themselves do not automatically make for be er conduct. ey have to be enforced. Here, the EU institutions have shown reluctance in the past. In the European Parliament for example, despite at least 27 alleged breaches of the Code of Conduct, no procedure ever led to sanctions. e European Commission approved a large majority of former Commissioners’ requests for new occupations a er their mandate. Even though caveats are being declared (such as ‘Do not lobby former colleagues!’) they are barely being followed-up on. Violations have not led to sanctions in the past. is also raises another fundamental aw in the European

1. MEP and rapporteur for an independent Ethics Body for the Greens in the European Parliament.

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It does not take a revolution in Brussel to x the ethical framework of the EU

bodies in Canada and France – should unify the ethics rules of the EU institutions (at the very least the Commission and European Parliament) and bundle their competences. French President Emmanuel Macron has pushed for this idea. Ursula von der Leyen has included the creation of an Ethics Body in the work programme of the European Commission.

a er leaving the European Commission, she joined the US company Uber. If breaches of the Code of Conduct go unchecked and unpunished they are laying a path for future violations. Even worse, they will have serious implications for citizens’ trust in democratic institutions. When people get the impression that EU policy is for sale and lobbyists can write their own laws, they turn away. is is a danger for democracy and plays into the hands of eurosceptics and populists. With the new EU budget and aid for COVID-19, Europe is spending more money than ever before. is great responsibility also means that we must ensure that this money is spent in the interest of the general public and does not favour wealthy individual interests.

First and foremost, an EU ethics body should be independent. e current system of institutional selfcontrol has not shown itself to be eﬀective in enfor-

It does not take a revolution in Brussel to x the ethical framework of the European Union. In order to ensure that the rules are respected in Brussels and that violations of the rules are consistently sanctioned, we Greens have proposed an independent ethics body. A new authority – comparable to similar

e current system of institutional self-control has not shown itself to be eﬀective in enforcing existing rules

But what should such an investigative authority look like? And what competences should it have? As the rapporteur in the European Parliament I have proposed three core elements to tackle the issue of unenforced ethics regulations.

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cing existing rules. erefore, we need a truly independent panel of experts who are commi ed to the credible implementation of rules, not to their (former) colleagues or superiors. Each EU institution should have the power to nominate three experts. e Ethics Body would therefore be steered by a panel of nine.

Rules will only ever be credibly enforced if violations will be followed by sanctions e legal road towards an EU Ethics Body is less bumpy than it might seem. For the creation of the authority I propose the form of an interinstitutional agreement between the participating institutions, based on Article 295 of the Treaty of the European Union. Existing powers and regulations would be bundled in one new authority. e steeper hill to climb will be to create political majorities in the EU institutions. In order to make the ambitious project on an Ethics Body successful we will need the support of all pro-European groups in the European Parliament. e outcome would be rewarding as it would contribute to growing trust in democratic policy making on a European level.

Presently, each EU institution has its own ethics officers who interpret the same rules in different ways. We want to bundle the competences and the expertise in one single authority. e Ethics Body should be responsible for all European Commissioners, Parliamentarians, staff and EU employees at the same time. Other EU agencies like Frontex should have the opportunity and be encouraged to join the Ethics Body. Rules will only ever be credibly enforced if violations will be followed by sanctions. In order to ensure that sanctions are actually imposed in cases of exceptionally serious breaches of the rules, ethics experts should not only be allowed to check but also to sanction. e EU Ombudsman and courts should obviously have the power to review these sanctions.

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Challenging the EU Institutions on Transparency – What is the Role of Academics? 1

Päivi Leino-Sandberg & Maarten Hillebrandt

States, EU legislation establishes In 2017 we started a research EU legislation estano particular rules for access to doproject, funded by the Academy cuments for research purposes. of Finland, aimed at breaking blishes no particular For this reason, requests are made down the practices assigned to by individual researchers in their transparency in the EU. Our rerules for access to capacity as ordinary EU citizens. search plan stated the ambition documents for research We are by no means the rst reto ‘map, and where relevant, try searchers engaging in access to doto in uence institutional practipurposes cuments requests (see here, here ces’ by seeking access to docuand here). However, in this proments needed for our substantiject the requests have been used exceptionally systeve research, and when necessary, initiating adminismatically to count as an empirical research method trative and judicial proceedings. Of interest was not in its own right. Below, we provide some examples only the substance of the document, but also the of the types of researcher-institution interactions to practice of handling these requests and the normatiwhich the project has led, and the lessons that can ve framework that the institution relies on. be drawn from them. For reasons of research ethics, we established that we would only request documents that are necesLegislative transparency sary from a research perspective so as not to burden the institutions excessively. We would not encouraLeino-Sandberg’s part of the project looks at EU ge leaks. We noted the particular challenge caused law-making. On 21 January 2021 the Court of Justiby documents which are in the public domain but ce delivered a judgment in a case that had its origins have not been lawfully released by the EU instituin an article on trilogue transparency, co-authored tions; a ma er that we expected the Court of Justice with Deirdre Curtin. e case, which was also reof the European Union to clarify. ported on by Anastasia Karatzia on EU Law Live, concerned an access request made to the European Unlike national legislation in various EU Member Parliament in 2017 relating to the European Parlia1. Päivi Leino-Sandberg is a Professor of Transnational European Law at the University of Helsinki and Deputy Director of the Erik Castrén Institute of International Law and Human Rights. Maarten Hillebrandt is a Postdoctoral researcher at the Erik Castrén Institute of International Law and Human Rights, University of Helsinki.

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A speci c feature in this eld is that most legal advice is not disclosed by the institutions themselves. Instead, when politically contested, it o en appears instead in the Financial Times or Politico. A question of research ethics emerges again: Can a newspaper article be used as a source, when there is no way to con rm whether the opinion has been appropriately quoted? Should we only use information that is lawfully in the public domain, and how does one verify that?

ment’s decision in another access case, brought by Emilio De Capitani. e decision was believed to explain why the Parliament – which has generally been vocal about trilogue transparency – refused to disclose such documents. While the Parliament refused to disclose its decision, De Capitani had placed it on his personal webpage, albeit in an amended form. is request has led to four years of litigation. While the Court of Justice ruled in our favour, it referred the ma er back to the General Court for nal ruling.

With this in mind, Leino-Sandberg has made various requests for legal opinions needed for her research. Most requests have received a positive reply, sometimes a er a con rmatory application. Together with project colleague Daniel Wya , she also complained to the European Ombudsman.

Legal advice Another area of speci c research interest for LeinoSandberg has been the use of legal advice in EU policy-making. Her forthcoming monograph ( e Politics of Legal Expertise in EU Policy Making, Cambridge University Press, 2021) engages in qualitative analysis of interviews and other empirical material, such as policy documents, legal opinions, pleadings of the institutions in court cases and their replies to access to documents requests.

In particular, the complaint concerning the European Commission’s refusal to grant access to legal opinions relating to the establishment of the European Public Prosecutor’s Oﬃce (EPPO) is of interest. Initially, we were informed by the Commission that there are no wri en documents relevant to the

Most legal advice is not disclosed by the institutions themselves

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As a result, Ms Leppävirta has needed to indicate which Member State’s documents she would like to have processed next, following which the Commission has then initiated the consultation process under Article 4(5) of the Regulation with the relevant Member State. While the process has been considerably slowed down, she eventually received all requested submissions, with the exception of one where the Commission referred to the case still being pending.

request. Some time later, however, the Commission identi ed ten relevant documents. Are its registers really up to the standard, if locating documents is indeed so diﬃcult?

e Commission subsequently granted full access to one of the documents and partial access to some others. Following our complaint, the Ombudsman opened an inquiry and her inquiry team carried out an inspection of the Commission’s le. She concluded that the public interest in the establishment of the EPPO would be properly served by greater Commission con rmatory application detransparency and the further disclosure she recomcisions mended. Since the Commission continued to withhold the releSometimes an empirical analysis Around 40 submissions of the institutions’ discharge of vant documents, three years a er the initial access to documade by the Commission their duties under access to documents request, the Ombudsman ments law requires systematic acand Member States con rmed her nding of maladcess requests to institutions’ deciministration. However, she did sions, to enable statistical extrahave been requested not inquire further into the Compolation, inter-institutional commission’s document manageas part of PhD research parison, and the systematic analyment system, which we had arinto the Europeanisation sis of legal practices that are only gued is inadequate to facilitate a summarily reported in the instiswi handling of requests for puof administrative law tutions’ annual reports. blic access.

Based on his data on the Council of the EU’s practice in this area, Hillebrandt decided to request similar data from the Commission via the AsktheEU portal, where the entire exchange can be read back. In ve separate requests, Hillebrandt applied for a total of 1,269 decisions to con rmatory applications issued between 2014 and 2018. is is of course a large amount, but these are administrative legal acts that are particularly mundane and should be uncontroversial. Such decisions are routinely and proactively disclosed by the Council of the EU in its register and contain very li le, quickly identi able sensitive information (typically personal details of the applicant such as their name and address).

Court pleadings Liisa Leppävirta’s PhD project concerns the Europeanisation of administrative law, with a focus on access to documents legislation. She has requested access to around 40 submissions made by the European Commission and Member States in court proceedings, primarily from the Commission, in access to documents cases before the Court of Justice. e Commission has insisted that Ms Leppävirta can only make a request for pleadings by one Member State at a time. Otherwise, the Commission argues, the request would be too broad and require a disproportionate amount of resources to be taken up.

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e institutions frequently do not live up to Treaty standards

e two Ombudsman decisions are now imminent. Early communication suggests that Hillebrandt risks losing his entitlement to receive wider access to documents, due to the fact that he has made other applications while the Ombudsman investigation was ongoing, even when these requests fell outside of the scope of the complaint. As a result, it appears that the Commission’s restrictive application of access rights, breach of legally established deadlines and inconsistent application of interpretive issues, but above all, lack of responsiveness, will go uncorrected.

e Commission refused to accept the request, assessing the administrative burden of these requests to amount to 3,800 days (10.4 years, based on a 7day work week), and suggested a ‘friendly solution’ of considering ten documents instead. Hillebrandt countered with an oﬀer to reduce the number of requested documents to 288 con rmatory application decisions from 2018. e Commission again rejected this counteroﬀer, deciding to grant access to 30 of the requested documents. e Commission exceeded the maximum handling time to which it is legally entitled, but insisted that the time spent on searching for a fair solution reduced its time for handling the request itself. As a result, 4.5 months had passed by the time Hillebrandt had his con rmatory application rejected. A complaint to the Ombudsman concerning this unsatisfactory situation was split up into two separate investigations, one pertaining to the Commission’s handling of Hillebrandt’s access requests, and one concerning the Commission’s failure to proactively disclose its decisions in con rmatory applications.

What have we learned? Empirical research reveals that the institutions frequently do not live up to Treaty standards. Writing con rmatory applications is cumbersome, as is keeping track of procedures and deadlines, which the institutions do not follow rigorously. Request handling deadlines are frequently extended for no apparent reason. e registers of institutions appear incomplete and their document management systems

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do not make responding to complaints easy. From the perspective of time invested in either obtaining the desired research data or obtaining a legal interpretation that ensures equitable public access to documents on future occasions, the Ombudsman route o en does not succeed at resolving problems. As regards litigation, so far we only have experience from one court case. In that context, the question of costs is a serious consideration. Moreover, researchers can seldom wait for three or four years to gain access to a document needed for research purposes.

e EU should do a be er job at revealing and justifying its decision-making quests, the officials working in the EU institutions make key democratic choices. e arguments used by the institutions to limit transparency rights o en re ect implicit assumptions, such as the understanding that the efficiency of the institution’s internal work must be traded off against democratic principles. Instead of policies driven by bureaucratic logic, we believe that a more political debate is needed on the way in which the exercise of democratic rights can be effectively exhausted.

e project was born out of the acknowledgement that we as researchers are not passive bystanders but are instead informed observers with a normative perspective that we acknowledge openly in our research activities, each giving this insight a place in our research practice in our own way.

We think that the EU should do a be er job at revealing and justifying its decision-making, in the rst place by complying with the le er and the spirit of the law. As academics, we seek to contribute to that transformation.

Yet even ling access requests for the purpose of obtaining research data, a process central to a more traditional conception of research activity, can be insightful. When assessing access to documents re-

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Foreign Lobbying in the European Union: The Limits of Transparency Regulation? 1

Emilia Korkea-Aho

litico, no public record of the sponsorship exists. An In today’s hyperglobal and networked world, lobbNGO Corporate Europe Observatory published a ying, just like other contemporary human activities, report in 2019 on how MSL Brussels – part of the transcends national and supranational borders. e French media conglomerate Publicis Groupe – has reason for the global reach of lobbying is simple. been contracted to represent the government of the Lobbying follows rule-making that has long been Kingdom of Saudi Arabia in the undeterred by the frontiers of teEU from at least October 2015. rritorial sovereignty. Take for insSaudi Arabia’s in uence was in tance the EU whose rules apply Lobbying follows the headlines in the earlier case inthousands of kilometres away volving the College of Europe, from its physical borders – the rule-making that has too. In the US, Paul Manafort faidevelopment referred to as the long been undeterred led to register under the Foreign Brussels Eﬀect. If the EU sets ruAgents Registration Act (FA ) les for those not in its immediate by the frontiers of for the work he did for the Gojurisdiction, it is no surprise, then, that those aﬀected by its reterritorial sovereignty vernment of Ukraine. He was sentenced to 73 months’ imprisongulatory superpowers are keen ment. In another case also involto make sure that their voice is ving the Ukrainian government, heard in rule-making. the high-pro le Washington lawyer Gregory Craig was found not guilty of making e globalisation of lobbying has given rise to sevefalse statements to the Justice Department in relaral scandals and controversies, both in the EU as tion to FA requirements. well as beyond. In Europe, German authorities investigated a former EU ambassador-turnedAre these headlines a result of lack of regulation? Or lobbyist Gerhard Sabathil for spying for China. In is the problem that we have simply not realised that another case involving China, a group of Chinathere is a need for enhanced transparency over friendly members of the European Parliament had a third-country in uencing operations? Does the EU gathering at the Parliament’s Strasbourg premises in regulate foreign lobbying, and what can we perhaps October 2019. e Chinese EU mission paid for learn from the US? drinks and snacks at the gathering. According to Po-

1. Associate Professor of EU Law and Legislative Studies at the University of Eastern Finland and Academy of Finland Research Fellow.

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Does the EU regulate foreign lobbying, and what can we perhaps learn from the US?

has led to tricky boundary policing work in cases where third country governments have joined forces with their industries, as happened with lobbying activities in relation to EU Chemicals Regulation REACH and as is currently happening with Big Tech’s lobbying in the EU.

e EU Transparency Register (EUTR) is geographically blind. It applies to all lobbyists trying to lobby the EU institutions irrespective of their location, and the EUTR currently involves 1800 lobbyists (approximately 15% of all registrants) without an oﬃce in an EU country. e largest groups of non-EU registrants come from the United Kingdom (998), the US (438), and Switzerland (275). ese lobbyists are in-house lobbyists, business and professional associations, professional consultancies and NGOs.

Much of lobbying occurs through intermediaries such as public aﬀairs consultants. is is also true of foreign lobbying. Consulting rms have tapped into the opportunities provided by the globalisation of lobbying, establishing oﬃces in Brussels, London, Washington and Hong Kong. Many regulatory issues have parallels in all jurisdictions, and simultaneous presence in several global cities gives these rms a distinct advantage. e EUTR requires consulting rms and others that provide lobbying services to disclose their clients, and this applies to both EU and third country clients. e above mentioned third country government exemption has, however, applied to intermediaries that have not disclosed any work they have undertaken for non-EU governments. For instance, the above mentioned MSL Brussels, despite having an entry in the EUTR, has not included Saudi Arabia in its list of clients.

e listings do not involve foreign governments. is is because there is an important exception to the global scope of the EUTR: paragraph 15 of the Interinstitutional Agreement (IIA) to the EUTR states that ‘[t]he register does not apply to Member States’ government services, third countries' governments, international intergovernmental organisations and their diplomatic missions’ (emphasis added). e rationale for the exemption is to ensure that the EU’s diplomatic relations with countries both in the neighbourhood as well as beyond its immediate borders are not aﬀected by lobbying regulation. As the EUTR expressly speaks only of governments, this means that corporations, NGOs or professional associations residing in third countries must register and disclose the details of their EU lobbying. is

e EU reached an agreement on the new IIA just before Christmas, and one change concerns the disclosure of third government clients. e new IIA, still pending the nal approval from the institutions,

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In the interest of avoiding overlaps, FA includes exemptions for lobbyists who register under the Lobbying Disclosure Act, meaning that disclosure through the general lobbying registration system is enough. However, this exemption is not available to agents of foreign governments or foreign political parties, indicating that foreign governments and political parties are perceived as posing a higher risk to democracy. Indeed, FA is explicitly tied up to the protection of the democratic process. e marketing brochure at the Justice Department website notes how FA ‘helps protect the integrity of American democracy by combating covert foreign government in uence in our political process’.

now states that the following activities are exempted: ‘public authorities of third countries, including their diplomatic missions and embassies; with the exception of legal entities, oﬃces and networks representing such authorities without diplomatic status or through an intermediary’ (emphasis added). is means that in the future, EU public aﬀairs consultancies need to disclose the work they do for the public authorities of third countries. is is the rst step to bring the EU on par with the US. In the US, the 1938 Foreign Agents Registration Act (FA ) – originally enacted to require the disclosure of Nazi propaganda in the US – requires that those who are doing public relations work on behalf of a foreign entity must register with the Justice Department. Agents who register must disclose their agreements with foreign principals, report the amounts and sources of funding they have received, and provide a log of all activities they have performed on behalf of foreign principals. Agents must also label informational materials they disseminate to disclose their agency relationship, and le copies of those materials with the Justice Department’s FA Unit.

e law has been loosely enforced for years. e past decade has seen increased FA enforcement activities, but given its various tricky distinctions (‘political’ versus ‘non-political’, ‘private’ versus ‘public’ as in the exemption concerning the representation of foreign governments in real estate acquisitions: ‘as long as that representation does not directly promote the public or political interests of the foreign government’), enforcement oﬃcials have struggled to breathe life into FA .

In a global comparison, the EU remains a step behind

e EU’s new lobbying register does not create an US style FA , but what it does is that it recognises – for the rst time – the role that foreign governments may have in shaping EU policies. In a global comparison, the EU remains a step behind. e recently inaugurated Biden called during his campaign for a ban on those lobbying on behalf of foreign governments. Indeed, he did not call for more transparency on foreign lobbying but suggested an

e FA ’s de nition of foreign principals includes foreign governments, political parties, corporations, individuals, and NGOs. e range of covered activities is also broad, encompassing a empts to inuence Congress, federal agencies or public opinion in the US.

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law. In a recent article, Jens David Ohlin contends that the US can help shape global norms supporting democracy by stating that foreign election interference breaches international law. He enumerates several measures that the Biden administration should take, such as imposing economic sanctions on foreign actors that engage in election interference or enacting new legislation to criminalise solicitation of foreign interference.

outright end to such activities. His proposal, if realised, would eﬀectively make it illegal for Americans to lobby on behalf of foreign governments. He also called for a concomitant ban on those lobbying on behalf of foreign companies that are linked to foreign governments. Whatever the fate of Biden’s proposal is in the new administration, the EU should open the debate on two issues.

e European Parliament seems to be taking the rst steps to increase scrutiny of foreign countries’ in uence on EU law-making and politics. French MEP Raphaël Glucksmann, chair of the Special Commi ee on Foreign Interference in all Democratic Processes in the European Union, told EU In uence that he has asked for the mandate of the commi ee to be extended until March 2022. He gave no details on whether the commi ee will cover lobbying, but noted that the process ‘can lead to recommendations’ on foreign lobbying. e FA does not provide a ready-made template on which to act, but a transatlantic exchange of views would aid the EU to develop such recommendations.

First, Biden’s proposal openly asks the question that we in the EU have been avoiding: Are there limits to transparency-enhancing regulation? At what point does (foreign) lobbying become such a threat to democratic decision-making that transparency is not enough to oﬀset the risks involved in interest representation activities? Second, to aid such debate, the EU should see – as the US does - lobbying and its regulation as a ma er of the highest priority to ensure the integrity of the democratic process as well as something to be taken seriously by constitutional, EU and international

Are there limits to transparency-enhancing regulation?

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News Highlights Week 8 to 12 March 2021

Council approves Joint Declaration on Conference on the Future of Europe

Commission adopts guidance to facilitate free movement of goods

Monday 8 March

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e Council of the EU has given its approval to a Joint Declaration, along with the European Parliament and the European Commission, on the Conference on the Future of Europe, an EU initiative to hold a high-level dialogue involving the main EU institutions, Member States and citizens on the future of European integration.

e European Commission has adopted guidance aimed at ensuring and facilitating the smooth functioning of the Single Market for goods. e guidelines provide insight into the uniform implementation of rules on the free movement of goods and on the improvement of some functions of the Single Market that have been harnessed by the COVID-19 pandemic.

General Court to hear action for failure to initiate proceedings following State aid complaint

European Commission: International Women’s Day and the COVID-19 pandemic

Monday 8 March

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e action Be Smart v Commission (T-18/21) before the General Court has been published. e company has commenced proceedings against the European Commission for failure to ful l its obligations under Articles 107 and 108 TFEU, and Articles 41 of the Charter and 12(1) and 15(1) of Regulation 2015/1589.

e European Commission has today issued a press release highlighting the domestic violence and negative employment impact of the COVID-19 pandemic speci cally on women, shown by its 2021 report on gender equality in the EU, on International Women’s Day.

General Court to hear another challenge to Guidelines on State aid measures for the system for greenhouse gas emission allowance trading

EU and US reach agreements on tariﬀs and agricultural quotas

Monday 8 March

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e European Union and the United States have reached two separate agreements to suspend all retaliatory tariﬀs linked to the World Trade Organization-Airbus/Boeing dispute and to adjust the EU’s WTO agricultural quotas following the United Kingdom’s departure from the bloc.

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Oﬃcial publication has been made of an action for annulment (T-741/20) challenging the validity of Annex I of the Commission’s State aid Guidelines in the context of the system for greenhouse gas emission allowance trading post2021. e applicant seeks annulment insofar as it excludes the man-made bres manufacturing sector.

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Opinion of EU’s Data Protection Supervisor: greater oversight needed in light of proposed extension of Europol’s security mandate

ECB publishes proposal for a Regulation on Markets in Crypto-assets Monday 8 March

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e European Central Bank published an Opinion on a proposal for a Regulation on Markets in Crypto-assets, which would amend Directive 2019/1937 on the protection of persons who report breaches of EU law, following the request of the European Parliament and the Council.

Monday 8 March

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e European Data Protection Supervisor published his Opinion on the proposed amendments to the Europol Regulation, which aim, in part, to broaden the scope of Europol’s mandate in response to changes in the security landscape and increasingly complex threats.

Court of Justice: ‘on-call time’ does not automatically qualify as ‘working time’ under the Working Time Directive

ECtHR: forced transfer of judges with no access to judicial review is contrary to fair trial rights

Tuesday 9 March

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e Grand Chamber of the Court of Justice handed down its judgments in DJ v Radiotelevizija Slovenija (C-344/19) and RJ v Stadt Oﬀenbach am Main (C-580/19) on the interpretation of Article 2(1) and (2) of the Working Time Directive 2003/88 when classifying a period of ‘on-call time’ as ‘working time’ or ‘a rest period’.

e European Court of Human Rights ruled in Bilgen v. Turkey (application no. 1571/07) that the compulsory transfer of a judge in Turkey to a diﬀerent court without any possibility of judicial review of the decision was in breach of the right to a fair trial under Article 6(1) of the ECHR.

Court of Justice rules that embedding copyright-protected works freely available to the public is a ‘communication to the public’

F publishes report on crime, safety and victims’ rights

Tuesday 9 March

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e EU Agency for Fundamental Rights published a report on crime, safety and victims’ rights, assessing how concerned people are about experiencing crime, and what measures have been adopted in response to speci c incidents.

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In VG Bild-Kunst (C-392/19), the Court of Justice, si ing in Grand Chamber formation, found that under Article 3(1) of the Copyright Directive the embedding of a work on the website of a third party by way of framing is a ‘communication to the public’.

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Lawyers’ freedom to provide services: Court of Justice rules lawyers from other Member States can be obliged to work in conjunction with local lawyer – but not as a blanket rule Wednesday 10 March

Commission publishes Communication on the 2030 Digital Compass Wednesday 10 March

e European Commission published a Communication on the ‘2030 Digital Compass: the European way for the Digital Decade’, which outlines the EU’s strategy to meet the challenges of digitalisation in the next ten years.

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e Court of Justice has ruled on the interpretation of Article 5 of Directive 77/249 where a ‘foreign’ or ‘visiting lawyer’ from a second Member State is required to work ‘in conjunction with’ a local lawyer for the purposes of representing his or her client in the rst Member State (VK v An Bord Pleanála, C-739/19).

Court of Justice: under EU law, third country nationals have right to appeal decisions refusing long-stay student visas Wednesday 10 March

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General Court dismisses action by Viasat challenging Commission’s inaction with regard to authorisation to use radio frequency band for air-to-ground communications

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In Konsul Rzeczypospolitej Polskiej w N. (C-949/19), the Court of Justice has ruled that under EU law, third country nationals are entitled to an appeal procedure against decisions refusing a long-stay visa for the purpose of studies.

Wednesday 10 March

Court of Justice dismisses Ertico’s appeal against General Court ruling relating to its refused status as SME under the SME Recommendation

Commission’s DG DIGIT seeking IT Legal Experts

Wednesday 10 March

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In ViaSat (T-245/17), the General Court dismissed an action brought by California-based telecommunications company ViaSat Inc challenging the Commission’s inaction in preventing a national regulatory authority from authorising a competitor to use a radio spectrum in the 2 GHz frequency band for the provision of air-to-ground communications for inight services.

Wednesday 10 March

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e European Commission’s Directorate-General for Informatics (DIGIT) is seeking two IT Legal Experts (in procurement, data protection, and IP law) to join its ICT Procurement and Contracts Unit.

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An appeal brought by European Road Transport Telematics Implementation Coordination Organisation – Intelligent Transport Systems & Services Europe (Ertico – ITS Europe) against the European Commission was dismissed by the Court of Justice (Ertico, C-572/19P).

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Court of Justice: EAW does not meet eﬀective judicial protection requirements when issued by a public prosecutor and not subject to judicial review in issuing State Wednesday 10 March

Commission approves another prolongation of Greek bank guarantee scheme Wednesday 10 March

State aid granted through the Greek bank guarantee scheme for credit institutions, rst approved in November 2008 to stabilise markets as a response to the global nancial crisis, was authorised by the Commission to be prolonged until 31 May 2021.

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e Court of Justice has ruled that the requirements of eﬀective judicial protection are not met when both an EAW and national arrest warrant are issued by a public prosecutor acting as ‘issuing authority’, and where there is no possibility of judicial review before surrender, under Article 8(1)(C) of the European Arrest Warrant Framework Decision and Article 47 of the Charter (Svishtov Regional Prosecutor’s Oﬃce (C648/20 PPU)).

AG Hogan: Istanbul Convention can be concluded by the EU through two separate decisions under speci c legal bases and without waiting for a common agreement among Member States

Commission, Council and Parliament Presidents sign Joint Declaration on the Conference on the Future of Europe ursday 11 March

ursday 11 March

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Advocate General Hogan delivered his Opinion in Convention d’Istanbul (Opinion 1/19), stemming from the European Parliament’s request made under Article 218(11) TFEU, regarding the appropriate legal basis for the EU’s signature and conclusion of the Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention).

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President von der Leyen, Portuguese Prime Minister Costa and President Sassoli signed, on behalf of the European Commission, Council of the EU and European Parliament, respectively, the Joint Declaration on the Conference on the Future of Europe.

EBA launches consultation on Guidelines to grant authorisation as credit institution ursday 11 March

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ECtHR: detention next to COVID-19 quarantine patients and lack of diligence in deportation procedure in breach of human rights

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ursday 11 March

e European Banking Authority published a Consultation Paper on its Guidelines on a common assessment methodology for granting authorisation as a credit institution. e consultation will be open until 10 June 2021.

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e European Court of Human Rights ruled in Feilazoo v. Malta (application no. 6865/19) that the Maltese authorities breached several provisions of the ECHR due to inadequate conditions of detention of the applicant, a migrant in an irregular situation, and for the defective legal-aid representation.

Nº51 · MARCH, 13 2021

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Joint Opinion on Data Governance Act from EU’s independent data protection bodies ursday 11 March

Emergency mechanism requiring authorisation of COVID-19 vaccine exports outside the EU extended until end June

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ursday 11 March

A joint opinion on the proposal for a Data Governance Act in the form of a Regulation (presented in November last year) was published by the EU’s independent data protection bodies, the European Data Protection Board (EDPB) and European Data Protection Supervisor (EDPS).

e European Commission’s measure of January 2021 requiring that vaccine exports outside the EU are subject to authorisation by Member States, described by the European Commission’s President as a ‘transparency and authorisation mechanism’ that is ‘temporary’, has been extended from 12 March 2021 to the end of June 2021.

Administrative cooperation in the eld of taxation: Commission launches consultation on new rules applicable to crypto-assets and e-money ursday 11 March

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AG Campos Sánchez-Bordona: tax authorities are not ‘judicial authorities’ for European Investigation Order purposes ursday 11 March

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e European Commission launched a public consultation on the future revision of the Directive on Administrative Cooperation, and more speci cally on the envisaged new rules on (i) reporting and exchange of information for tax purposes on e-money and crypto assets, and (ii) penalties and compliance measures for the various reporting obligations under the DAC framework.

Advocate General Campos Sánchez-Bordona in Finanzamt für Steuerstrafsachen und Steuerfahndung Münster (C-66/20) advises the Court to rule that Article 2(1)(c)(ii) of the European Investigation Order Directive does not allow a Member State to exempt an administrative tax authority from the obligation to have the EIO validated by a judicial body by conferring on it public prosecutor competences.

European Banking Authority opens consultation on discussion paper on integrated reporting

Cybersecurity update welcomed by EU’s Data Protection Supervisor

Friday 12 March

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e European Data Protection Supervisor published an Opinion yesterday that welcomes the legislative proposal for the Network and Information Systems (NIS) 2.0 Directive, which aims to replace the existing NIS Directive 2016/1148, stating that it is essential for data and privacy protection to be embedded in it.

A discussion paper on the feasibility study (under Article 430c of the Capital Requirements Regulation) of an integrated reporting system to collect feedback for its nal Report has been published by the European Banking Authority today (EBA).

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Insights, Analyses & Op-Eds Migrationsverket: Member States may issue a residence permit for the purpose of family reuni cation to a thirdcountry national whose identity cannot be established with certainty by Janine Silga

Silcompa: strengthening the case for preventing double taxation by Philippe Heeren

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Analysis of the Court’s strengthening of rules to prevent double taxation in the context of excise duty through its recent ruling In Silcompa (C-95/19), and which con rms the primacy of the division of powers in the Excise Directive.

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Analysis of the Court of Justice’s case Migrationsverket (C193/19), that EU law does not prevent Member States from issuing a residence permit to a third-country national who is subject to an alert in the SIS when their identity cannot be established with certainty, provided that the conditions set out in Article 25(1) of the Convention on the Schengen Agreement are duly respected.

ere is a Time for Everything by Daniela Krömer

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Op-Ed on the Court of Justice’s approach to EU employment law (speci cally the Working Time Directive) and workers who are required to be ‘on-call’, as shown through recent rulings DJ v Radiotelevizija Slovenija (C-344/19) and RJ v Stadt Oﬀenbach am Main (C-580/19).

Library - Book Review OLHA O. CHEREDNYCHENKO AND MADS ANDENAS (EDS)

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Financial Regulation and Civil Liability in European Law Review of a book that oﬀers both a bo om-up (micro) and top-down (macro) perspective on the relationship between regulation and civil liability, a book that starts ‘a necessary and long-needed conversation to ensure our nancial institutions and regulatory bodies are t for purpose’ which is ‘all the more important in view of the challenges the nancial industry will face in the next decade such as climate change mitigation, digitisation of the market place through blockchain technology, AI and big data analytics’.