No collective redress against foreign companies in cases of purely financial damage: Case C-709/19 VEB v. British Petroleum

The decision of the Court of Justice of the European Union (CJEU) in Vereniging van Effectenbezitters (VEB) v British Petroleum PLC (BP) plc, delivered on 12 May 2021, came as a major blow to Dutch claim associations suing foreign defendants before domestic courts. The CJEU ruled that Article 7(2) of Brussels I bis Regulation (Regulation No 1215/2012) must be interpreted as meaning that the direct occurrence of a purely financial loss resulting from investment decisions does not allow the attribution of international jurisdiction to a court of the Member State in which the bank or investment firm is located. This is true even if the investment decision was taken due to misleading information from an internationally listed company that was published worldwide. Only the courts of the Member State where a listed company must fulfil its statutory reporting obligations have international jurisdiction on that ground. Continue reading

Brexit and the free movement of goods: a bitter goodbye to Cassis?

The Brexit and the subsequent Trade and Cooperation Agreement (hereafter TCA) marked the beginning of the bumpy and unprecedented road of European disintegration. Fear about loss of sovereignty and regulatory control was the driving force behind the UK longstanding reluctance to further European integration and, eventually, its exit from the Union altogether. The Leave campaign deployed its “take back control” slogan and promised divestiture from EU institutions and policies. What does “taking back control” entail? Well, in essence, and although there is no consensus on what the referendum vote implied precisely, we may assume that it means that legislation and regulation affecting the UK should be enacted (or at least believed to be enacted) by the UK. In other words, Brexiteers wished to regain full regulatory autonomy and hoped that leaving the EU would achieve this result. Will this narrative be upheld in practice, though? This post offers some answers that the TCA provisions on trade in goods and technical standardisation may offer. In a nutshell, it shows that, when it comes to trade in goods, the UK, although it has regained the theoretical opportunity to depart from EU harmonising legislation and technical standards, has not only not gained back control de facto but it is, in fact, losing opportunities when it comes to technical standardisation and market access. Continue reading

The Data Governance Act: New rules for international transfers of non-personal data held by the public sector

In November 2020, the European Commission (EC) published its proposal for a Data Governance Act (DGA proposal). Among other aspects, the DGA proposal sets out a legal framework for the re-use of public sector data which are covered by third parties’ rights, namely data covered by intellectual property (IP) rights and confidential data of non-personal nature as well as personal data. This legal framework aims to unlock the re-use of public sector data that falls outside the scope of the Open Data Directive. While the General Data Protection Regulation (GDPR) regulates international transfers of personal data, the DGA proposal includes rules regulating international transfers of non-personal data by a re-user that was granted access to such data by the public sector. After presenting these rules, this blogpost assesses their potential effects on international data transfers and, accordingly, cross-border trade regarding data processing activities. It also analyses whether these rules may have a broader impact going beyond their scope, in particular on business-to-business (B2B) data sharing and on third countries’ intellectual property (IP) and trade secrets regimes.

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The Big Brother Watch and Centrum för Rättvisa judgments of the Grand Chamber of the European Court of Human Rights – the Altamont of privacy?

Introduction

On 25 May 2021 (coincidentally or not, the third anniversary of the entry into application of the General Data Protection Regulation, GDPR), the European Court of Human Rights (ECtHR) delivered its long-awaited Grand Chamber judgments in applications against UK and Sweden and their mass surveillance regimes. The landmark judgment Big Brother Watch and others v UK is the final outcome of the Strasbourg battle of 16 different organisations against the UK government mass surveillance regime, that began after the Snowden revelations in 2013. The Chamber judgment was delivered in 2018 (analysed previously by me here and on this blog here). 

The Big Brother Watch judgment also had a ‘little sister’, Centrum för Rättvisa v Sweden. This is an older case against the Swedish intelligence agencies’ laws and their mass surveillance practices. The Chamber judgment is also from 2018, but the application was lodged back in 2008.

After the Grand Chamber judgments came out, Privacy International declared ‘an important win for privacy and freedom for everyone in the UK and beyond’. Admittedly, the Grand Chamber found Article 8 of the European Convention on Human Rights (ECHR; the right to private life) violations in both cases, thereby overturning the Chamber outcome of Centrum för Rättvisa. The Grand Chamber also took the opportunity to develop the Court’s case-law further, specifically regarding bulk interception regimes. It did not content itself with a mere application of the somewhat outdated Weber and Saravia criteria. The optimism of privacy activists is, therefore, understandable at the outset. However, I believe that the bigger picture (and lesson) from the judgments is far bleaker. I agree with professor Milanović, who names the judgments as a ‘grand normalisation of mass surveillance’ and tells us to forget about declaring landmark victories for privacy. I also agree with professor Ni Loideain, who calls the Grand Chamber judgments ‘not so grand’. I will try to explain the main reasons why Big Brother Watch, Privacy International, and many other privacy activists and experts have nothing to celebrate.Continue reading

The New EU Human Rights Sanctions Regime: a SWOT Analysis

In December 2020, the European Union adopted two complementary legal instruments, namely Council Decision (CFSP) 2020/1999 (Council Decision) and Council Regulation (EU) 2020/1998 (Council Regulation), which have provided the Union with a new Common Foreign Security Policy (CFSP) tool, a new sanctions regime.

The new regime, also presented as the ‘EU Magnitsky Act’, represents the latest development of EU targeted sanctions, in line with a global trend toward individualisation. It empowers the Union, more precisely the (Foreign Affairs) Council, to impose restrictive measures on individuals personally responsible for serious human rights violations and abuses worldwide. Targeted individuals, once having listed in the regime, are subjected to two types of restrictive measures: (1) financial sanctions (meaning that EU operators must comply with the obligation to freeze all assets, funds and economic resources of the listed persons, and must also ensure that they do not make any funds or economic resources available to them) (see Article 3 Council Regulation) and (2) travel ban (meaning that Member States shall take the measures necessary to prevent the entry into, or transit through, their territories) (see Article 2 Council Decision).

In the following blog post, the new EU regime will be subject to a SWOT (Strengths-Weaknesses-Opportunities-Threats) analysis. This kind of study is usually applied for evaluating business projects, initiatives or products, and it is rarely used in the legal field. However, the advantage of a SWOT analysis is that it has a clear and schematic structure – which can be most valuable in the legal field too. In fact, it will allow us to better understand the new regime, assessing (and comparing) its potentials and limits, particularly focusing on what obstacles it must overcome or minimize to achieve the desired results.

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An upcoming landmark? AG Kokott in C-109/20 Poland v. PL Holdings

On 22 April 2021, Advocate General Kokott issued her opinion on the preliminary reference referred by the Swedish Supreme Court in Poland v PL Holdings SARL (Case C‑109/20).

The case concerns the compatibility of intra-EU investment arbitration, but with a twist. The Swedish Supreme Court (SSC) did not ask whether the investor-state dispute resolution (ISDS) provision in the 1987 BLEU – Luxembourg (intra-EU) BIT as such, is compatible with EU law. Instead, the question is whether, despite the assumed incompatibility of that treaty provision, a Member State can (still) enter into an ‘individual’ arbitration agreement with an investor, for instance by concluding a contract, or by omitting to challenge the jurisdiction of the arbitral tribunal in time.

Essentially, the CJEU is asked to clarify its reasoning in para. 55 of the Achmea judgment on the (criticised and confounding) distinction between investment arbitration and commercial arbitration and on the consequence of a Member States’ lack of objection to jurisdiction under treaty arbitration. The importance of this question is obvious as regards the many contract-based investment arbitrations, but it is equally important and arguably more controversial as regard Member States’ ability to engage in (either commercial or investment) arbitration.

It has often been said that Achmea is not really about investment arbitration. Following AG Kokott’s opinion, it seems that neither is Poland v. PL Holdings. Her opinion adopts a constitutionally expansive reasoning and proposes a standard of review that is hardly in line with international arbitral practice. However, the reasoning does appear consistent with the CJEU’s construction of the constitutional EU judicial system. If the CJEU follows the AG’s opinion, Poland v. PL Holdings might well become even more (in)famous than Achmea and define the co-existence of the  EU legal order  with arbitration.

After a brief summary of the factual background, this post addresses the key points of the Advocate-General’s reasoning against the backdrop of the Achmea judgment, followed by a brief appraisal of the potential importance and consequences if the CJEU were to follow the reasoning of AG Kokott.

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Changing the Tune of EU Competition Law – The Apple (Music Streaming) Statement of Objections

On 30 April 2020 the European Commission published its Statement of Objections (‘SO’) against Apple, claiming that the tech giant has abused its dominant position in the market for the distribution of music streaming apps through its App Store, in a move which highlights the potential of competition policy to be used as a tool for digital sovereignty and which raises questions about the future of competition law enforcement in the European Union as well as the goals of competition policy in the digital age. 

Competition policy has been mooted as a potential tool to address challenges as diverse as climate change, economic recovery from the effects of the COVID-19 pandemic and regulating the behaviour of Big Tech. This expansive interpretation of the potential uses of competition policy has led to the idea of ‘competition overdose’, coined by Ezrachi and Stucke to describe the oversubscription to competition policy as a solution for a wide variety of issues. 

The Apple SO can be seen as the newest example of an expansive interpretation of the limits and objective and competition policy, this time in relation to digital sovereignty, a priority of the European Commission and arguably of the European Union as a whole. Although the meaning of ‘digital sovereignty’ is not entirely clear yet, an analysis of the way in which it has been presented by the EU institutions – the Commission, for example, defines it as the ‘capacity to set its own standards rather than follow those of others’ – and defined by scholarship, reveals that this concept revolves around three core elements: autonomy, ability to influence, and the protection of ‘on-line self-determination’ of EU citizens. Moreover, it spans across three dimensions – (1) EU and other states; (2) EU and non-state actors, in particular, Big Tech players and (3) EU citizens and the digital worldContinue reading

The Curious case of Aspen Pharmaceuticals and Excessive Pricing

Introduction

Aspen, one of the biggest pharmaceuticals giants, came into limelight when it acquired cancer treating drugs after their patent expired in 2009. The drugs were useful for the treatment of leukaemia, hematologic tumours etc. Across the European Economic Area, it is sold under different brand names and it is an extremely popular and important drug in treating these deadly diseases. Usually the price of the medicines falls significantly after they go off patent. The reason for this is that in the EU, national authorities of Member States can adopt pricing and reimbursement rules for treatments and medicines according to their wishes in accordance with their economic and health needs. When medicines go off patent, Member States have the liberty to influence the prices and encourage the competition to achieve lower prices. However, in Aspen’s case, curiously, a significant price increase was observed for all the life – saving medicines. Continue reading

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