Weekend Edition Nº91 by eulawlive

Nº91

FEBRUARY 26

2022

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SPECIAL ISSUE

THE COURT OF JUSTICE'S JUDGEMENTS ON THE RULE-OF-LAW FINANCIAL CONDITIONALITY REGULATION W I T H C O N T R I B U T I O N S B Y:

PEKKA POHJANKOSKI NIELS KIRST

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Contents

Weekend

Pekka Pohjankoski

e Unveiling of EU’s Constitutional Identity Judgments in C-156/21, Hungary v. Parliament and Council and C-157/21, Poland v. Parliament and Council Niels Kirst

Rule of Law Conditionality before the Court – A Judgement of Constitutional Nature Judgments in C-156/21, Hungary v. Parliament and Council and C-157/21, Poland v. Parliament and Council

Highlights

21 to 25 February 2022

Insights, Analyses & Op-Eds

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The Unveiling of EU’s Constitutional Identity Judgments in C-156/21, Hungary v. Parliament and Council and C-157/21, Poland v. Parliament and Council Pekka Pohjankoski

e EU’s ‘constitutionalization’ used to happen quietly. Much water has owed in the Pétrusse, the tiny river crisscrossing through the city of Luxembourg, since in 1981 Eric Stein argued that the European Court of Justice had ‘fashioned a constitutional framework for a federal-type structure in Europe’, in quiet bricolage while ‘[t]ucked away in the fairyland Duchy … and blessed … with benign neglect by the powers that be and the mass media’ (1). Times have certainly changed. On 16 February 2022, all the eyes were on the Court of Justice, si ing exceptionally in plenary formation, as it delivered the judgments in the twin cases Hungary v Parliament and Council (2) and Poland v Parliament and Council (3), for the rst time in history before cameras in a live-streamed si ing (4). Immediately once the rulings were out, the New York Times sent a ‘breaking news’ alert to its subscribers (5), the European Parliament convened to debate them (6), the hashtag #ruleo aw pervaded Twi er, and the EU law blogosphere started a manic analysis of their impact. In the judgments, the Court rejected the two Member States’ annulment actions against the Conditionality Regulation 2020/2092, which permits the cu ing oﬀ of EU money from Member States breaching rule-of-law principles (7). e outcome of the long-awaited judgments was no surprise; it was plain to the Court’s observers that the challenges were unlikely to prosper (8). However, what is surprising is how consequential the rulings are from the perspective of EU constitutional law (9). It is as though Hungary and Poland have received, in exchange for their dubiously motivated actions, more

than they bargained for. In fact, by laying out a plethora of 20 [sic] federal-constitutional-law styled claims befo-

i. Researcher, University of Helsinki, Faculty of Law. 1. Eric Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ 1 American Journal of International Law 75 1981, pp. 1-27, at 1. 2. Judgment of the Court of Justice of 16 February 2022, Hungary v European Parliament and Council of the European Union (C-156/21, EU:C:2022:97). 3. Judgment of the Court of Justice of 16 February 2022, Republic of Poland v European Parliament and Council of the European Union (C-157/21, EU:C:2022:98). 4. ‘Court of Justice to livestream delivery of judgment for the rst time’, EU Law Live, 14 February 2022. 5. Matina Stevis-Gridneﬀ, Monika Pronczuk and Benjamin Novak, ‘Top European Court Rules E.U. Can Freeze Aid to Poland and Hungary’, e New York Times, 16 February 2022. 6. European Parliament, ‘ e Rule of Law and the Consequences of the ECJ Ruling (debate)’, 16 February 2022, Strasbourg. 7. Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ 2020, L 433I/1. 8. See eg my own prediction in Pekka Pohjankoski, ‘New Year’s Predictions on Rule of Law Litigation: e Conditionality Regulation at the Court of Justice of the European Union’, Verfassungsblog, 7 January 2021. 9. See also Niels Kirst’s contribution in this Weekend Edition (referring to the judgments’ ‘distinctive constitutional tone … not expected with this thickness’).

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re the Court, these Member States have pushed the judges to engage in far-reaching arguments about the Union’s identity and powers. It hasn’t helped that, all the while, their governments have outright challenged the authority of EU law (10) and willfully ignored the EU’s calls to stop meddling with independent judiciaries (11), harassing migrants (12), gagging free media (13), or peddling anti-LGBT propaganda (14). Against this backdrop, the Court has delivered judgments of extraordinary constitutional salience. Let’s focus on three points. First: identity. e Court explicitly links the Union’s values, including the rule of law, with its own constitutional identity. It holds that the EU’s founding values, listed in Article 2 of the Treaty on the European Union (TEU), are ‘not merely a statement of policy guidelines or intentions’, but part of the Union’s ‘very identity’ as a common legal order (15). is use of the concept of ‘identity’ implies that the EU is not allowed, on grounds of its constitutional law, to compromise on its values. Not unlike a constitutional court holding that national identity requires protecting the core of the nation’s sovereignty, the Court goes on to aﬃrm that the EU Treaties must be interpreted as granting the Union the power to defend its values (16). Moreover, the Court recalls, in passing, that it has jurisdiction to interpret the requirements owing from those values, just like it may interpret the rest of the EU Treaties (17). Second: obligations of Member States. e Court clari es that the rule of law is a ‘shared’ EU value which binds Member States not only upon accession, but ‘at all times’ (18). is appears a welcome clari cation of the obscure ‘no reduction’ test for post-accession rule of law standards articulated in the Repubblika case law (19). As for the respect which the Union owes to the Member States’ national constitutional identities, the Court concedes that while ‘a certain degree of discretion’ can be aﬀorded to them to ensure the realization of the principles of the rule of

By laying out a plethora of 20 [sic] federal-constitutional-law styled claims before the Court, Hungary and Poland have pushed the judges to engage in far-reaching arguments about the Union’s identity and powers

e Court clari es that the rule of law is a ‘shared’ EU value which binds Member States not only upon accession, but ‘at all times’

10. Elian Peltier and Monika Pronczuk, ‘Poland’s A acks on Rule of Law Leave Europe at Odds With Itself’, e New York Times, 22 October 2021. 11. James Sho er, ‘Warsaw Plans more judicial reforms as EU dispute rages on’, Financial times, 3 November 2021. 12. Richard Hardigan, ‘Migrants cope with freezing weather, violence on Hungary border’, Al-Jazeera, 18 February 2022. 13. Krisztina an, ‘U.N. expert raises concerns over media freedom in Hungary ahead of 2022 vote’, Reuters, 22 November 2021. 14. Elizabeth Kuhr, ‘E.U. takes action against Hungary, Poland over anti-LGBTQ measures’, NBC News, 16 July 2021. 15. Judgment of the Court of Justice, Hungary v Parliament and Council, para 232. 16. ibid., para 127. 17. Judgment of the Court of Justice, Poland v Parliament and Council, para 329. 18. Judgment of the Court of Justice, Hungary v Parliament and Council, para 234 (‘at all times’) and passim. 19. Judgment of the Court of Justice of 20 April 2021, C-896/19, Repubblika, EU:C:2021:311.

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law in their legal systems, the ‘obligation’ to guarantee those fundamental principles cannot be subject to variation inside the Union. e Court recalls that even the powers which the EU Treaties reserve for the Member States must be exercised in compliance with EU obligations. It follows that the Union is empowered to defend its values, through nancial conditionality, against breaches of the rule of law even if such a breach is a ributable to an authority which a Member State considers to be ‘involved in its sovereign action in areas fundamental to the exercise of its essential functions’ (20). ird: ‘horizontal’ conditionality. e material crux of the cases is, of course, that the Court con rms the EU’s power to adopt a nancial conditionality mechanism linking the distribution of EU money to a Member State’s compliance with the rule of law. To justify such horizontal conditionality, the Court weaves a web connecting the EU values as ‘identity’; the principle of conferral and that of the consistency of Union policies; the principle of solidarity, to which the EU budget (21) gives concrete expression; and the mutual trust between Member States in the responsible use of EU money (22), concluding that there is a ‘clear relationship’ between respecting the rule of law and the eﬃcient implementation of the EU budget. Conditioning the receipt of EU money upon the respect of the rule of law is ne, says the Court, as long as there is a ‘genuine link’ between the established rule of law breach and the money. is conclusion entails the Court’s rejection of the claims on any ‘real’ impact of conditionality. On this view, the mechanism is not punitive, but simply about the money, that is, the protection of the EU budget.

20. Judgment of the Court of Justice, Poland v Parliament and Council, paras 265-269. 21. Judgment of the Court of Justice, Hungary v Parliament and Council, paras 127-131. 22. ibid, para 176.

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Much more could be said about the 70-page judgments, but space precludes a lengthier assessment.

Seized of Hungary and Poland’s actions, the Court has been required to lay down strongly worded benchmarks for the Union’s values, characterizing the la er as foundational for its constitutional identity

e key takeaway is this: seized of Hungary and Poland’s actions, the Court has been required to lay down strongly worded benchmarks for the Union’s values, characterizing the la er as foundational for its constitutional identity. is is not outlandish. In fact, the basic idea of the rule of law is so entrenched in European legal consciousness that at one point the Court, quite strikingly, essentially states that Poland shouldn’t pretend not having enough information as to what respecting the rule of law means (23). As is customary for the Court’s plenary formation, its judgments consolidate and go beyond earlier case law. However, in a time of openly voiced disagreement on the meaning of the rule of law in the EU, the Court’s judgments cannot, at the very least, be labelled as quietly building a ‘federal-type structure’ behind the scenes. Instead, under scrutiny from politicians, media and academia alike, the Court has made its point loud and clear: the rule of law is not a smorgasbord of national options, but part of the Union’s common constitutional identity.

e Court has made its point loud and clear: the rule of law is not a smorgasbord of national options, but part of the Union’s common constitutional identity

23. Judgment of the Court of Justice, Poland v Parliament and Council, para 289.

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Rule of Law Conditionality before the Court – A Judgement of Constitutional Nature Judgments in C-156/21, Hungary v. Parliament and Council and C-157/21, Poland v. Parliament and Council Niels Kirst

16 February 2022 marked the day of a seminal twin judgement for the European Union (EU). e Court of Justice of the European Union (the Court) aﬃrmed the legality of Regulation 2020/2092 (1) – the so-called Rule of Law Conditionality Regulation (the Regulation) (2). e proceedings before the Court were widely followed, and the pronouncement of the judgment was even transmi ed via live stream on the Internet for the rst time (3). e Court was seated in Full Court, with many Member States participating in the oral hearing (4). All those elements underlined the importance of the case. In its ruling, the Court aﬃrmed the legality of the Conditionality Regulation and rejected the challenges by Poland and Hungary. e plethora of arguments brought forward by Poland and Hungary can be summarised into four main legal challenges on which the Court focused in its judgement: a challenge of the legal basis of the Regulation, a claim that the Regulation would create a parallel procedure to Article 7 TEU, an alleged incompatibility with the principles of national identity and equality between the Member States and objections to the principle of legal certainty and proportionality. is wide array of challenges prompted the Court to make wide-ranging constitutional statements, which will be important for cases to come. Some scholars have already analysed the twin judgements (5). is contribution will provide three observations on the judgment which seek to go beyond doctrinal legal analysis. e following lines will also abstain from making predictions about the Regulation’s future application and from explaining the procedural history of the case. Instead, the three observations that this Long Read puts forward focus on the constitutional tone of the judgment, the link between solidarity and the rule of law, and the Court’s speci cations of the application of the Regulation. i. Niels Kirst is a PhD Candidate at Dublin City University and currently Visiting Scholar at Cardozo Law School. His PhD project focuses on the EU’s rule of law crisis and the role of the Court of Justice. 1. Regulation 2020/2092 of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget, OJ 2020, L 433I/1. 2. For a complete analysis of the Regulation and its enactment, see Niels Kirst, ‘Rule of Law Conditionality: e Long-Awaited Step Towards A Solution of the Rule of Law Crisis in the European Union’ 6 European Papers Insight 2021, pp. 101-110. 3. ‘Court of Justice to livestream delivery of judgment for the rst time’ EU Law Live (14 February 2022). 4. John Morijn, ‘A Closing of Ranks: 5 key moments in the hearing in Cases C-156/21 and C-157/21’ Verfassungsblog (14 October 2021). 5. Anna Zemskova, ‘Analysis: Rule of Law Conditionality: a Long-Desired Victory or a Modest Step Forward?: Hungary v Parliament and Council (C-156/21) and Poland v Parliament and Council (C-157/21)’ EU Law Live 2022 (18 February 2022), and Beatrice Monciunskaite and Niels Kirst, ‘ e CJEU Gives its Green Light for the Conditionality Regulation’ Rebuild Centre EU (21 February 2022).

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e Constitutional Tone of the Judgement At rst glance, the judgment reverberates with the reader as it strikes a distinctive constitutional tone which was not expected, or at least, not with this thickness. By reading both judgements, the reader immediately feels that this is an important judgment of constitutional nature for the EU. e Court clearly states that the values of the EU, enshrined in Article 2 TEU, are not merely policy guidelines or intentions but concrete legal principles which form the heart of the European constitutional identity. ‘[…] Article 2 TEU is not a mere statement of policy guidelines or intentions, but contains values which […] are an integral part of the very identity of the European Union as a common legal order, values which are given concrete expression in principles comprising legally binding obligations for the Member States.’ (6)

e judgment reverberates with the reader as it strikes a distinctive constitutional tone which was not expected, or at least, not with this thickness

Additionally, the Court employs the idea of a Union that must defend its values. e concept of a well-forti ed democracy comes to mind, which is, for example, prominent in German constitutional thought and nds itself in the German Grundgesetz (7). e judgment of the Court transcends the idea of a wellforti ed democracy onto the EU, in the way that the EU must be able to defend the values on which it is based. However, subject to the limits of its powers prescribed in the Treaties. ‘ e values contained in Article 2 TEU have been identi ed and are shared by the Member States. ey de ne the very identity of the European Union as a common legal order. us, the European Union must be able to defend those values, within the limits of its powers as laid down by the Treaties.’ (8) Both statements are remarkable for their constitutional gravity and may have real legal consequences in the future. Moreover, both statements hint towards the Court’s willingness to support a further entrenchment of the values of Article 2 TEU in EU secondary law.

6. Judgment of the Court of Justice of 16 February 2022, Hungary v European Parliament and Council of the European Union (C-156/21, EU:C:2022:97, para. 232) and judgment of the Court of Justice of 16 February 2022, Republic of Poland v European Parliament and Council of the European Union (C-157/21, EU:C:2022:98, para. 264). 7. According to Art. 20 of the Grundgesetz, every German citizen has the right to resistance against anyone who wants to abolish the constitutional order as a last resort. 8. Judgment of the Court of Justice, Hungary v Parliament and Council, para. 127, and judgment of the Court of Justice, Poland v Parliament and Council, para. 145

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Article 2 TEU not only refers to the value of the rule of law but also to the principle of solidarity. e twin judgements tie those two notions of EU law together

Solidarity as the Glue between the Budget and the Rule of Law Article 2 TEU not only refers to the value of the rule of law but also to the principle of solidarity. e twin judgements tie those two notions of EU law together. In its ruling, the Court emphasised that the principle of solidarity requires that the rule of law is upheld when the EU budget is implemented in the Member States. e Multiannual Financial Framework (MFF) and the Next Generation EU Fund (NGEU) are based on solidarity and mutual trust between the Member States. Both principles would be seriously undermined if breaches of the rule of law are commi ed in a Member State when utilising EU funds. Only when the rule of law is upheld in the Member States the principle of solidarity is protected. ‘[…] the Union budget is one of the principal instruments for giving practical eﬀect […] to the principle of solidarity […]. […] the implementation of that principle, through the Union budget, is based on mutual trust between the Member States […]. at mutual trust is itself based […] on the commitment of each Member State to comply with its obligations under EU law […] which include the value of the rule of law.’ (9) e Court frames the Conditionality Regulation as the instrument that provides the missing link between the principle of solidarity and the rule of law. In this regard, the Court follows the Advocate General in his analysis (10). us, the Conditionality Regulation is a necessary tool to ensure that the principle of solidarity is protected when Member States implement the EU budget. 9. Judgment of the Court of Justice, Hungary v Parliament and Council, para. 129 and judgment of the Court of Justice, Poland v Parliament and Council, para 147 10. Opinions of Advocate General Campos Sánchez-Bordona in Case C-156/21, Hungary v Parliament and Council (EU:EU:C:2021:974) and in Case C157/21, Poland v Parliament and Council (EU:C:2021:978).

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Limitations to the Application of the Regulation e Court did not only delve into values and principles, but it also spelt out the main requirements for applying the Regulation. First, the Court made clear that a genuine link between rule of law de ciencies and risks to the EU budget needs to be established for applying the Regulation. In contrast, the Regulation only speaks of a ‘sufficiently direct way’. is is a heightened burden of proof for the Commission when bringing the rst case under the Regulation (11). ‘[…] that the adoption of appropriate measures be subject to the existence of breaches of the principles of the rule of law which affect or seriously risk affecting the sound nancial management of the Union budget or the protection of the nancial interests of the Union […]. e la er condition thus requires that a genuine link be established between those breaches and such an effect or serious risk of an effect.’ (12) Second, the Court clari ed that the Commission is obliged to use an evidence-based approach and at the same time respect the principles of objectivity, non-discrimination and equality. is sets another high burden for the Commission in collecting evidence and dra ing an accusation under the Regulation. Moreover, those principles could likely be the ground of a future legal challenge by a targeted Member State. ‘[…] the Commission is under an obligation, when examining whether the adoption of appropriate measures is justi ed, to use an evidence-based approach and to respect the principles of objectivity, non-discrimination and equality of the Member States before the Treaties.’ (13) ird, the Court stressed the strict proportionality of the measures taken under the Regulation. is implies that the amount of money withheld from a Member State must withstand a strict proportionality test. us, the Regulation does not give the Commission a free ticket to withhold EU money, but instead, everything must pass muster against a high legal bar.

e Court made clear that a genuine link between rule of law de ciencies and risks to the EU budget needs to be established for applying the Regulation. In contrast, the Regulation only speaks of a ‘suﬃciently direct way’. is is a heightened burden of proof for the Commission when bringing the rst case under the Regulation

11. is prompted the Commission to emphasise that as a next step, Guidelines for the precise application of the Regulation must be worked out. European Commission, ‘Statement by European Commission President Ursula von der Leyen on the judgments of the European Court of Justice on the General Conditionality Regulation’ (16 February 2022). 12. Judgment of the Court of Justice, Hungary v Parliament and Council, para. 147 and judgment of the Court of Justice, Poland v Parliament and Council, para 165. 13. Judgment of the Court of Justice, Hungary v Parliament and Council, para. 148 and judgment of the Court of Justice, Poland v Parliament and Council, para. 166

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‘It follows that the measures taken must be strictly proportionate to the impact of the breaches of the principles of the rule of law found on the Union budget or on the protection of the nancial interests of the Union.’ (14) In conclusion, the threefold elaboration by the Court sketches out the requirements that the Commission must adhere to when it applies the Regulation. Eventually, the Commission’s Legal Service will take those into account when dra ing the Guidelines for applying the Regulation.

e Regulation does not give the Commission a free ticket to withhold EU money, but instead, everything must pass muster against a high legal bar

Conclusion e Court’s judgment on the Conditionality Regulation provides extensive food for thought that goes well beyond the three observations made in this contribution. As Pekka Pohjankoski points out in his Long-Read in this Weekend Edition, these are indeed a constitutional judgments of the Court, and they further entrench constitutional ideas into the web of European law. ese judgements, therefore, con rm the thesis of an insidious constitutionalisation of EU law via the Court (15). Eventually, the way the judgments were pronounced (16), the reaction to them (17) and their tone underline the Court’s aspiration as constitutional Court for the EU that protects the fundamental values of the Union.

e way the judgments were pronounced, the reaction to them and their tone underline the Court’s aspiration as constitutional Court for the EU that protects the fundamental values of the Union

14. Judgment of the Court of Justice, Hungary v Parliament and Council, para. 274 and judgment of the Court of Justice, Poland v Parliament and Council, para. 302 15. For example, to be found in Eric Stein, ‘Lawyers, Judges, and the Making of a Constitution’ 75 e American Journal of International Law pp. 1; Joseph Weiler, e Constitution of Europe: "Do the new clothes have an emperor?" and other essays on European integration (Cambridge University Press 1999); Ulrich Haltern, e Constitution of the European Union: A Contextual Analysis (Bloomsbury 2022 forthcoming). 16. ‘Court of Justice to livestream delivery of judgment for the rst time’ EU Law Live (14 February 2022). 17. European Commission, ‘Statement by European Commission President Ursula von der Leyen on the judgments of the European Court of Justice on the General Conditionality Regulation’ (16 February 2022); European Parliament, ‘ e Rule of Law and the consequences of the ECJ ruling’ (debate on the 16 February 2022); or, for example, Matina Stevis-Gridneﬀ, Monika Pronczuk and Benjamin Novak, 'Top European Court Rules EU. Can Freeze Aid to Poland and Hungary' e New York Times (16 February 2022).

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News Highlights 21 to 25 February 2022

Two positions available at European Centre for Disease Prevention and Control

Senior Legal Support Oﬃcer position available at European Public Prosecutor’s Oﬃce

Monday 21 February

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e European Centre for Disease Prevention and Control is seeking candidates for the positions of Legal Oﬃcer and Principal Expert Emergency Preparedness and Response at its headquarters in Stockholm.

e European Public Prosecutor’s Oﬃce is seeking applications for the position of Senior Legal Support Oﬃcer who will provide legal advice to all the functions of the Permanent Chambers, direct prosecutions, coordinate investigative cross-border cases, amongst others.

Italian calculation methodology for issuing direct nancial guarantees to agricultural, agri-food and shery companies approved by Commission

Fully Funded Doctoral Candidate position launched by Max Planck Institute Luxembourg for Procedural Law

Monday 21 February

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e European Commission approved under the State aid rules the modi cation of the Italian public guarantor ISMEA’s methodology to calculate the fees on direct guarantees to companies active in agricultural, agri-food and shery sectors.

EU and Kenya advance talks on interim Economic Partnership Agreement Monday 21 February

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e EU and Kenya agreed to advance negotiations on an interim Economic Partnership Agreement, which, in addition, will be complemented by binding commitments on environmental protection, climate and labour rights.

Monday 21 February

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e Max Planck Institute Luxembourg for Procedural Law is oﬀering a two-year contract for a fully funded Doctoral Candidate (Research Fellow) in EU and Comparative Procedural Law.

Amended EIO Directive published Monday 21 February

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Oﬃcial publication was made of Directive 2022/228, which amends the European Investigation Order Directive in order to align it with EU rules on the protection of personal data.

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Legal Adviser position available at European External Action Service

EU condemns Russia’s recognition of Ukrainian breakaway regions

Monday 21 February

Tuesday 22 February

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e European External Action Service (EEAS) is seeking to recruit a Legal Adviser for its SG.AFFGEN.2 “Administrative Law and EU Civil Service Law” legal division in Brussels.

Presidents Michel and von der Leyen issued a joint statement condemning ‘in the strongest possible terms’ Russia’s decision to recognise the independence of two rebel-held regions in Eastern Ukraine.

Commission nds that Hungary breached EU Merger rules by vetoing acquisition of AEGON’s subsidiaries by VIG

National judges can examine conformity with EU law of national provisions that have been declared constitutional: Court of Justice judgment

Tuesday 22 February

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e European Commission nally concluded that Hungary’s decision to veto the acquisition of the Hungarian subsidiaries of the AEGON Group by Vienna Insurance Group AG constitutes a breach of the EU Merger Regulation.

Tuesday 22 February

Court of Justice clari es criteria to assess risk of breach of a right to a fair trial in the context of an EAW

Court of Justice: not published oﬃcially ISO standards referred to in Tobacco Products Directive are binding on cigare e manufacturers

Tuesday 22 February

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In Openbaar Ministerie (C-562/22 PPU and C-563/21 PPU), the Court of Justice clari ed the criteria to be applied by European Arrest Warrant executing authorities to assess the risk of a breach of the right of a fair trial in issuing Member States.

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e Court of Justice ruled in RS (Eﬀet des arrêts d’une juridiction constitutionnelle) (C-430/21) that national judges cannot be prevented from examining the conformity with EU law of a provision of national law that the constitutional court of that Member State has found to be constitutional, under the risk of exposure to disciplinary proceedings and penalties.

Tuesday 22 February

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e Court of Justice in Stichting Rookpreventie Jeugd and Others (C-160/20), concluded that the method which has been established by the ISO for determining the maximum emission levels for tar, nicotine and carbon monoxide is binding on cigare e manufacturers, but not to the general public if the ISO standards have not been published in the Oﬃcial Journal.

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Obligation to carry out strategic environmental assessment establishing general protection of natural beauty area clari ed by Court of Justice Tuesday 22 February

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e Court of Justice ruled in Bayern e.V. v Landkreis Rosenheim (C-300/20) that there is no obligation to perform an environmental assessment before establishing a general prohibition against a large number of projects in a protected area if the regulation does not set out speci c rules for projects listed in the Environmental Impact Assessment Directive.

An application for international protection may be declared inadmissible if the applicant has refugee status in another Member State, Court of Justice nds Tuesday 22 February

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e Court of Justice ruled in Commissaire général aux réfugiés et aux apatrides (Family unity – Protection already granted) (C-483/20) that a Member State may exercise its option to declare an application for international protection inadmissible on the ground that the applicant has already been granted refugee status by another Member State.

EU-UK Withdrawal Agreement Joint Commi ee discusses citizens, Northern Ireland Tuesday 22 February

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At the ninth meeting of the Withdrawal Agreement Joint Commi ee in Brussels, European Commission VicePresident Šefčovič and UK Foreing Secretary Truss discussed the citizens’ rights and the Protocol on Ireland/Northern Ireland.

Council adopts new recommendations on COVID-19 free movement and travel Tuesday 22 February

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e Council of the EU adopted an updated recommendation on the temporary restriction of non-essential travel into the EU that will start to apply on 1 March 2022, relaxing the rules for vaccinated and those persons who have recovered from COVID-19.

AG Rantos: compliance with international standards of private search and rescue ships may be monitored by port States

ECtHR: rejection of a civil defamation lawsuit by national court did not breach right to respect of private and family life

Tuesday 22 February

Wednesday 23 February

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Advocate General Rantos issued his Opinion in Sea Watch (Joined Cases C-14/21 and C-15/21), regarding the powers conferred on Port States under Directive 2009/16 in relation to the inspection of search and rescue private ships.

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e European Court of Human Rights held in Regional Air Services S.R.L. and Ivașcu v. Romania that a rejection by national courts of a civil defamation lawsuit did not breach the right to respect of private and family life as national courts had duly weighed the respect for private life of the applicant and the journalists’ right to freedom of expression.

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General Court dismisses actions for damages over unlawful Commission merger decision

Commission presents Data Act se ing out rules to boost value creation from data

Wednesday 23 February

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e General Court dismissed two actions for damages seeking compensation for alleged economic damage resulting from a decision of the European Commission declaring a notied concentration between United Parcel Service and TNT Express NV incompatible with the internal market (Cases T834/17 and T-540/18).

e European Commission proposed a Data Act – a set of rules on who can use and access data generated in the EU across all economic sectors intended to ensure fairness in the digital environment, stimulate a competitive data market and increase data accessibility.

Council adopts sanctions against Russia for recognising Donetsk and Luhansk as independent entities and sending troops into Ukraine

Commission publishes in-depth analysis of ve sectors where EU faces strategic dependencies on third countries Wednesday 23 February

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e European Commission published the second edition of in-depth analysis assessing risks and opportunities in ve areas where the EU faces strategic dependencies on third countries, namely, rare earths and magnesium, chemicals, solar panels, cybersecurity and IT so ware.

AG Collins: UK nationals ceased to be EU citizens a er UK withdrawal ursday 24 February

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Advocate General Collins advised the Court of Justice to rule that UK nationals ceased to be EU citizens a er the United Kingdom’s withdrawal from the EU, the loss of those rights being one of the consequences of such a sovereign decision (Case C-673/20).

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Wednesday 23 February

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e Council adopted a package of sanctions in response to Russia’s decision of 21 February 2022 to recognize the nongovernment controlled areas of the Donetsk and Luhansk oblasts of Ukraine as independent entities and send Russian troops into these areas.

Cour t of Justice clar i es precontractual information disclosure of ‘unit-linked’ group life assurance contracts ursday 24 February

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e Court of Justice clari ed in A (Contrats d’assurance « unit-linked ») (Joined Cases C-143/20 and C-213/20) the scope of the pre-contractual information disclosure obligation in relation to ‘unit-linked’ group life assurance contracts.

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EU missions to be considered employer of EU staﬀ before they acquire legal capacity to conclude contracts ursday 24 February

Court of Justice: Eurofer’s a empt to annul Commission Regulation terminating anti-dumping investigation into steel imports from Serbia dismissed

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ursday 24 February

e Court of Justice ruled in EULEX-KOSOVO (C-283/20) that EU missions should be given the status of employer of their international staﬀ even when the mission as such lacks legal capacity to enter into contracts, employ staﬀ and be a party to legal proceedings.

e Court of Justice in Eurofer v Commission (C-226/20 P) dismissed the appeal brought by the European Steel Association against the judgment of the General Court that dismissed Eurofer’s action against Implementing Regulation 2017/1795, by which the Commission terminated the antidumping investigation with regard to certain seel imports originating in Serbia.

Court of Justice clari es tax authorities’ obligations under GDPR when issuing extensive tax information requests

European Council condemns Russia’s aggression against Ukraine ursday 24 February

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ursday 24 February

e members of the European Council released a joint statement following Russia’s military a ack against Ukraine today, in which they condemn the aggression ‘in the strongest possible terms’.

Commission authorises merger between two global leaders of container and cargo handling equipment, subject to conditions Friday 25 February

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e Court of Justice clari ed in SIA SS v Valsts ieņēmumu dienests (C-175/20) the application of the General Data Protection Regulation (GDPR) 2016/679 to tax authorities when they make requests for information containing considerable amounts of personal data.

European Court of Auditors updated Code of Conduct published Friday 25 February

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Oﬃcial publication was made of the updated Code of Conduct of the European Court of Auditors outlining the duties of members as regards their independence, objectivity, competence, discretion and collegiality, as well as their external activities.

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e European Commission approved the proposed merger between two global leaders of container and cargo handling equipment Cargotec and Konecranes, subject to the divestiture of certain business activities.

Nº91 · FEBRUARY 26, 2022

Weekend

Edition stay alert keep smart

European Council conclusions on Russian aggression against Ukraine Friday 25 February

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e European Council met in an emergency session to discuss Russia’s military aggression against Ukraine, which according to EU leaders, grossly violates international law and the principles of the UN Charter, and undermines European and global security and stability.

Insights, Analyses & Op-Eds On the rule of law and Statute of limitations… Obligation to provide information concerning assets or rights held in other Member States of the European Union (Case C-788/19, Commission v Spain by Ricardo García Antón

No Horizontal Direct Eﬀect of the Services Directive, and a Good ing Too: elen Technopark by Justin Lindeboom

Op-Ed on the Court of Justice’s judgment in elen Technopark that held that the Services Directive cannot be invoked in a dispute between private individuals. e author argues that the Court was right to reject the horizontal direct eﬀect of the Services Directive, notwithstanding the obvious and undeniable incompatibility of the relevant national law with the directive.

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Op-Ed on the Court of Justice’s judgment in case C-788/19 which held the Spanish legislation requiring tax residents to declare overseas assets or rights contrary to the EU rules on free movement of capital.

Court of Justice rules on the scope of EU ETS allowances free allocation for former aircra operators by Ma eo Fermeglia

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e Council of Europe must rise to the challenge of Russia’s war on Ukraine by Laurence Burgorgue-Larsen

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Op-Ed assessing the course of action that the Council of Europe should take, in particular the suspension of Russia’s representation in the mentioned body, as a response to Russia’s military invasion into Ukraine.

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Analysis of the Court of Justice’s judgment in case Air Berlin (C-165/20) concerning the interpretation of Directive 2003/87/EC establishing a system for greenhouse gas emission allowance trading within the Union (ETS Directive) as applied to aviation through Directive 2008/101/EC (Aviation Directive).

Nº91 · FEBRUARY 26, 2022

Weekend

Edition stay alert keep smart

e many ways to be ‘able’ – workers with disabilities (C-485/20, HR Rail) by Daniela Krömer

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Analysis of the ndings of the Court of Justice’s judgment in HR Rail (C-485/20) in which it was held that a worker doing a traineeship and who is declared incapable of performing work duties due to a disability can bene t from reassignment to another post unless that measure imposes a disproportionate burden on the employer.