Playing Chess like Commissioner Vestager

Every world chess champion possessed his own unique playing style. Tigran Petrosian was dubbed “Iron Tigran” due to his impregnable defensive style. Anatoly Carpov’s positional style earned him the nickname “boa constrictor”. Jose Raul Capablana was known as the “human chess machine” because of the relentlessly accurate manner in which he bested his opponents.

Were Commissioner Vestager to play high-level chess, she would probably play like Mikhail Tal. The so-called “Magician from Riga” was a formidable world chess champion. Known for his creative attacking style, Tal was daring and unpredictable on the chess board. His dramatic combinational play allowed him to confuse and rattle his opponents, who would usually proceed to make errors and concede defeat.

The way the board is set these days, few areas of EU competition law are as topical as fiscal state aid. The household names involved in the tax ruling cases (e.g. Apple, Amazon, Starbucks), coupled with the transatlantic tensions to which they have occasionally given rise, have brought state aid policy to the forefront of Commissioner Vestager’s work.

Building on some noteworthy quotes by Mikhail Tal, this post will endeavour to make sense of the different moving pieces on the state aid chessboard, describe the current state of play and evaluate the Commissioner’s “checkmating” odds. Continue reading

E-EVIDENCE: THE WAY FORWARD (Summary of the Workshop held in Brussels on 25 September 2019)

Editor’s introduction

On September 25, 2019, the Grenoble Alpes Data Institute, in cooperation with the Cross Border Data Forum and Microsoft, held in Brussels an academic workshop on the topic of cross-border access to electronic evidence, entitled: “E-Evidence: The Way Forward”. The goal of this workshop, organized by Professor Theodore Christakis, was to provide a convening space for European researchers and experts working on these issues to advance thinking about the challenges in the domain of government access to digitally stored data. At the meeting, the participants were invited to examine the recent legislative developments, especially the E-Evidence proposal currently under discussion in the European Parliament and the negotiations for an EU/US Agreement on cross-border access to electronic evidence that have just started.

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The Future of Bank Resolution after the General Court’s Tercas Judgment

The genesis of the EU bank resolution framework was based on the fundamental principle that failing financial institutions could not receive external financial support, be it industry financing or state aid unless they had first internalized their losses by placing the burden at least upon shareholders and junior creditors. However, the General Court’s ruling in the Tercas case in March 2019 seems to strike a heavy blow against these fundamentals by considering that Tercas bank’s recapitalization by a private banking consortium did not constitute state aid, even though the consortium was operating as a mandatory deposit guarantee scheme (DGS) and was obliged to reimburse deposits in case of liquidation, pursuant to the DGS Directive. In this context, this blog-post embarks on a brief analysis of the European risk management framework, and sails on to discuss the Tercas judgment and its implications for the future, especially if upheld in the pending appeal case before the Court of Justice of the EU (CJEU).

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Google v CNIL Case C-507/17: The Territorial Scope of the Right to be Forgotten Under EU Law

In its landmark ruling in Case C-507/17 Google v CNIL, the Court of Justice held that there is no obligation under EU law[1] for Google to apply the European right to be forgotten globally.[2] The decision clarifies that, while EU residents have the legal right to be forgotten, the right only applies within the borders of the bloc’s 28 Member States.

In its analysis, the Court considered the 1995 Data Protection Directive and the General Data Protection Regulation (GDPR) which entered into force on 25 May 2018 repealing the Directive.[3] The decision is critical because, at first glance, it appears to have closed the door for EU residents to demand a worldwide removal of their information, in certain circumstances, from search engine results under the GDPR. The Court explicitly set limits on the territorial scope of an individual’s right to de-reference. In simple terms, this means that Google is only required to remove links to personal data from internet searches conducted within the EU.

However, while Google and proponents of the freedom of expression and access to information have claimed this case as an ostensible win, a closer analysis of the Court’s decision shows a more nuanced approach which leads to a different conclusion. Though the Court conceded the limitations of current EU law in requiring global delisting, it also asserted salient points which open the possibility for national data protection authorities (DPAs) to require search engine operators to delist globally by recognizing their competence to enact laws with regards to the matter. In this sense, CNIL and other EU national DPAs could arguably lay claim to a more substantial victory under this ruling.

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Case C-128/18 Dorobantu – the Aftermath of Aranyosi and Căldăraru

On 15 October 2019, the Court published its judgement in Dorobantu, after a preliminary reference submitted by the Higher Regional Court of Hamburg, Germany. The case concerns the interpretation of Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009.

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An agenda for transparency in the EU

Transparency and openness of Union decision-making procedures are foundational values of the EU[1] and essential to a system under the rule of law. But are the existing EU standards of transparency adequate to ensure that these values translate to legitimate exercise of public powers on the European level? In view of today’s challenges, is the EU’s approach to transparency sufficient, given that it is an atypical constitutional structure exercising sovereign powers across multiple levels of government and in constant need of explaining itself?

The European Council’s strategic agenda for 2019-2024 identifies respect of the principles of democracy, the rule of law, and transparency as a key focus, instructing each institution to “revisit its working methods and reflect on the best way to fulfil its role under the Treaties”. We whole-heartedly agree: there is an urgent need for such soul-searching reflection. The EU institutions’ implementation practices do not always live up to the Treaties’ values and transparency objectives. Rectification of that failure is of paramount importance to the future of the EU.

Regrettably, the mission letter to Věra Jourova, Commission Vice-President-designate for ‘Values and Transparency’, provides no concrete actions to deliver on the commitments included in the strategic agenda to develop the potential of the EU as a modern, open legal system connected to its citizens. To help fill that lacuna, we propose a set of ideas and concepts to create a new agenda for transparency in the EU. This agenda should be realized within the new legislative cycle beginning with the new Commission coming to office in late 2019.

We identify two dimensions of transparency that must be addressed: (a) access to documents and (b) intelligibility of decision-making procedures. Without these, the possibility of holding those exercising powers to account does not exist. A lack of transparency is one of the breeding grounds for mis-information campaigns and conspiracy theories, reducing the public to recipients of rumors and falsified information designed to sway emotions. Functioning transparency arrangements, instead, offer reliable information sources and contribute to accountability through public debate, democratic participation and effective judicial review.

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Court highlights strict rules in milestone ruling for wildlife protection C-674/17

On 10 October 2019 the CJEU handed down a much anticipated judgment in case C-674/17 Luonnonsuojeluyhdistys Tapiola.  This case was a preliminary reference from the Supreme Administrative Court of Finland on the interpretation of Article 16(1)(e) of the Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora).

Article 12 of the Habitats Directive requires member states to establish a system of strict protection for animal and plant species listed in Annex IV of that Directive, including Canis Lupus – Wolves.

Article 16(1) allows member states to derogate from that strict protection in limited circumstances and provided certain tests are met.  There must be no satisfactory alternative, the derogation must not be detrimental to the maintenance of the population at favourable conservation status in their natural range and derogations may only be applied for specific reasons, in summary:

  • in the interests of protecting wild flora and fauna and conserving natural habitats;
  • to prevent serious damage to crops, livestock, forests, fisheries and water;
  • in the interests of public health and public safety, or for other imperative reasons of overriding public interest;
  • for the purposes of research or education, for example for repopulation or reintroduction;
  • to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens in limited numbers specified by the competent national authorities.

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Review of Thomas Horsley’s “The Court of Justice of the European Union as an Institutional Actor: Judicial Lawmaking and its Limits” (CUP 2018)

In his monograph, Thomas Horsley tackles one of the largely unchallenged truisms of EU law and integration studies, namely that the CJEU is a constitutional court, and as such has the ultimate authority to interpret the Treaty. This truism has taken root partially as a result of the CJEU’s own pronouncements in a range of cases starting with Van Gend & Loos and Costa v ENEL. In these cases, and those that followed their line of reasoning, the CJEU constructed a legal order that offered an exceptionally permissible environment for judicial action and activism – feeding off the more widely felt sentiment after the horrors of the Second World War that perhaps courts were the least fallible of all political institutions. Whatever the exact genesis of the narrative that attributes the CJEU with its constitutional character, it is now often taken for granted that the CJEU cannot be curbed in any meaningful sense – be it through domestic or supranational institutions. While in political science literature more and more attention is given to the empirical reality of the interaction between national courts and the CJEU, and the ways in which the former can nudge or circumvent the latter’s preferences, in legal studies such critical engagement has been lacking. Often, the CJEU’s status is seen as the pinnacle of the vision of the EU as based on law, or, as the recent Commission White Paper on the Future of Europe put it, as “replacing the rule of war with the rule of law”.

Horsley challenges this truism, and does so very persuasively. He highlights not just that the sociological acceptance of the CJEU’s role is in fact largely absent in both political and judicial institutions throughout Europe, but also that the constitutionalist narrative doesn’t hold its own on purely legal terms. In fact, the development of the role of the CJEU stands in contradiction with the Treaty. Going through a range of different aspects of the legal architecture of the EU, Horsley shows, in simple terms, that the Treaty answers basic questions about the nature and scope of integration very differently than the CJEU has. And this matters, Horsley argues, because of the ridiculously high consensus threshold that underpins the Treaty. We should, in other words, be suspicious of the CJEU’s answers where they differ from those articulated in the Treaty.

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