How far can the extraterritorial reach of EU law go? A step further by the CJEU as a transnational actor

A decade after one of the most high-profile cases on the extraterritorial reach of EU law concerning the inclusion of global aviation emissions in the EU emissions trading system (‘ETS’) (Case C-366/10 Air Transport Association of America ‘ATAA’), the ECJ’s judgment in Case C-561/20 brought to light its lasting significance and its extension to a different aspect of air transport concerning passenger rights. It also reaffirmed the CJEU’s key role as a transnational actor when reviewing the geographic scope of secondary legislation. The CJEU has consistently extended EU regulation through two types of review: either by interpreting the scope of secondary legislation to cover activities taking place partly in third countries (e.g. Case C-424/13 Zuchtvieh-Export, Case C-592/14 European Federation for Cosmetic Ingredients, Case C-507/17 Google v CNIL) or by validating the legality of secondary legislation explicitly designed with a broad territorial scope (e.g. ATAA). Case C-561/20 combines both approaches, enabling the extraterritorial reach of EU law both through interpretation and legality review of Regulation (EC) No 261/2004 (‘Air Passenger Regulation’). Continue reading

The principle of proportionality and the EAW: uneasy bedfellows?

Although the European Arrest Warrant (“EAW”) between Member States should be employed as an ultima ratio, given the substantially coercive nature of the surrender procedure, the issuance of EAWs is increasingly commonplace in the European area. The plethora of EAWs issued by State authorities raises concern particularly in view of the necessity to respect the principle of proportionality.  

The principle of proportionality in the context of the European Arrest Warrant can be examined from two different perspectives: on the one hand, the so-called “prospective proportionality” when the EAW is issued in a disproportionate way to the extent that the surrender procedure is activated to prosecute minor offences; and, on the other hand,  “retrospective proportionality” when the penalties applied by the issuing State are perceived as disproportionate by the executing State (such terminology was first introduced by Haggenmuller, 2013). In this post, I will briefly deal with the former category of proportionality, the current issues, and the future perspectives. In the second part of the post, the Italian practice regarding the notion of “prospective proportionality” will be analysed, by referring to domestic legislation and recent case law. Continue reading

Standing of Non-Profit Associations or Consumer Associations to File Collective Actions without a Data-Subjects Mandate: Case C-319/20 Meta Platforms

On 28 April 2022, the Court of Justice gave a revolutionary judgment for non-profit associations or consumer associations by allowing standing to such associations to bring GDPR claims in the collective interest of individuals, irrespective of an actual infringement of the data subjects’ rights without being mandated by them. 

Facts of the case

Meta Platforms Ireland supplies services from the social network Facebook in Germany. On a space called “App-Zentrum” (Applications Space) on Facebook, free games from third parties are available. When accessing these games, the user sees a notice that the use of the application allows the gaming company to obtain certain personal data and authorises it to publish, on behalf of the user, his/her scores. This use means that the user accepts the general conditions of the application and its data protection policy without having adequate information about the data collected. 

The Federal Association of Consumer Centres and Consumer Associations Germany, a body with standing to act under German law (Article 4 of the Law on Injunctions), considered that these games breached legal requirements of obtaining valid user consent. It successfully filed for an injunction before the Berlin Regional Court on behalf of the data subjects whose rights had allegedly been violated. Meta Platforms appealed this decision first before the Higher Regional Court, Berlin, and then again before the Federal Court of Justice, Germany, which referred a preliminary question to the Court of Justice of the European Union. Continue reading

The Grand Chamber’s Judgment in Case C-117/20 bpost: Disimproving the Essence of ne bis in idem

In its judgment in case C-117/20 bpost SA v Autorité belge de la concurrence (hereinafter bpost), rendered on 22 march 2022, the Grand Chamber of the ECJ further developed its case law on the principle of ne bis in idem (Article 50 CFREU, also known as the right not to be punished twice). Bpost had been received two separate administrative penalties of punitive character for its a new tariff system for the distribution of addressed advertising material and administrative mail items. The Belgian Postal Regulator considered the new tariffs to discriminate between consolidators and direct clients. According to the Belgian Competition Authority, the same also constituted an abuse of a dominant market position. The question rose whether the imposition of two fines violated the principle of ne bis in idem.

In addressing that question, the ECJ continues struggle to define the essence of ne bis in idem. The Court had previously implied a convincing and clear definition of that essence in case C-129/14 PPU Spasic: An individual must never actually be sanctioned twice for the same act. This definition was subsequently narrowed down in case C-524/15 Menci, where the Court opened the door to the actual imposition of two sanctions, provided it occurs ‘only under conditions which are exhaustively defined’. The definition in Menci is diametrically opposed to the very wording and idea of ne bis in idem (literally ‘not twice for the same’) and has drawn considerable critique from AG Bobek in his Opinion in bpost. The Court did not address this critique in bpost, and instead disimproved the essence of ne bis in idem further: The duplication of sanctions will not violate the essence if it is provided for under different sets of legislation.  

We will begin with a brief note on the concept of essence in EU fundamental rights law in order to contextualise bpost. Next, it examines the Court’s definition of the essence of ne bis in idem in the case law leading up to bpost and AG Bobek’s critique thereof, before evaluating the Court’s latest definition. The contribution concludes with discussion on what bpost reveals about the Court’s approach to defining the essence of fundamental rights more broadly. Continue reading

Entrenching Emergency Soft Law

On the 23rd of March 2022 the European Commission adopted another Temporary Crisis Framework for State aid, this time in the context of Russia’s invasion of Ukraine (the Ukraine TF). The framework is meant to mitigate the economic impact of the war and EU sanctions by supporting severely affected businesses. This practice is not isolated, with the 2008 Temporary Framework issued in response of the financial crisis (the Financial Crisis TF), and the 2020 Temporary Framework issued in the context of the coronavirus outbreak (the Coronavirus TF), allowing already for trillions of Euros to be paid by the Member States to salvage their economies. These ‘frameworks’ belong to the loose category of ‘soft law’, as they have no legally binding force but may produce legal and practical effects. In areas of exclusive EU competence, such as State aid, such effects are far reaching, with research showing a general trend of compliance from national courts and administrations. 

Yet, soft law, and especially emergency soft law, have feeble legitimacy credentials, whilst regulating matters of high political, social, or economic salience. Through its Ukraine TF, the Commission sets the criteria according to which public money should be spent to ease the enormous pressure of high energy prices or the spill over effects of economic sanctions. Even though it pertains to the security of energy supply, environmental protection, and geopolitical concerns, the Ukraine TF was not issued following public consultations (unlike ‘regular’ State aid soft law), and the discussions that the Commission had with the Member States on the topic were not published. The Ukraine TF was published only two years after the Coronavirus TF, raising the concern that such practices, of issuing temporary soft law, are becoming entrenched, further endangering the rule of law in the EU.Continue reading

The Slovak Amnesty case before the CJEU: respect for national constitutional identity and (pre-) settlement with the past

On 16 December 2021, the Court of Justice delivered its ruling in the case C-203/20 AB and Others. The judgment provides an interesting clarification of the ne bis in idem principle in EU law and an analysis of the specific national constitutional procedure revoking an amnesty. The main conclusion of the Court is that the principle ne bis in idem does not prevent the issuance of a European arrest warrant against the persons accused of kidnapping the son of the former Slovak president. The Court also ruled that the revocation of the amnesties of these accused persons in 2017 and their review by the Slovak Constitutional Court did not implement EU law, as these procedures fall outside its scope.

1. Factual background

The facts of the case represent an interesting flashback to Slovakia’s pre-EU-membership past. In 1995, the son of the former Slovak President was abducted from Slovakia to the neighbouring Austria, and subsequently he was arrested due to an ongoing German investigation. The act of abduction was attributed by the prosecutors in Slovakia to the individuals charged in the main proceedings in this case, some of whom were working for the Slovak Intelligence Service at the moment of abduction. In 1998, the accused were granted amnesty, which resulted in the cessation of the criminal proceedings in Slovakia. In 2017, following wide-spread public pressure and the release of the film “Kidnapping” depicting the events of 1995, the Slovak Parliament revoked the amnesty. The revocation was assessed by the Slovak Constitutional Court which confirmed its compatibility with the Slovak Constitution. Subsequently, the criminal proceedings against the accused were reopened before the referring national court. In the context of these proceedings, the Slovak court referred three questions to the Court of Justice. The Slovak court first asked whether the EU Charter of Fundamental Rights prevents the issuance of a European arrest warrant against an individual, whose prosecution was reopened after the revocation of a previously granted amnesty. The European arrest warrant was issued because one of the accused individuals is supposed to be abroad (para 17). Second, the national court asked whether a national law which annuls the decision of a national court to discontinue criminal proceedings breaches EU law. Finally, the referring court asked whether EU law, including the principle of sincere cooperation and the right to fair trial, prevents national law which limits the review of the Constitutional Court to examine only the compliance with the national constitution, without being able to consider EU law.

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C-247/20 VI v The Commissioners for Her Majesty’s Revenue & Customs and the implications of preliminary references during the transitional period: a case study in legal complexity

On 10 March 2022, the CJEU handed down its ruling in Case C-247/20 VI, concerning the status of the NHS as a provider of comprehensive sickness insurance for the purposes of Article 7 of Directive 2004/38. As already noted by Charlotte O’Brien, the case has significant implications in respect of the substantive rights of EU citizens in the UK, as it clarifies that the UK government’s interpretation of the Directive was incorrect, with important consequences for individuals seeking to assert residency rights begun before Brexit in the UK. In our view, the case also raises two important constitutional points from the perspective of EU relations law post-Brexit, which we attempt to explore in further detail in this post.Continue reading

One fattened, six starved? The Article 2 TEU values after the rule of law conditionality judgments

Has the CJEU defined the content of most of the Article 2 TEU values? 

This is the question – narrow but consequential – which this post seeks to answer, analysing the recent Full Court judgments of Cases C-156/21 Hungary v Parliament and Council and C-157/21 Poland v Parliament and Council (‘Hungary and Poland’). I reach three conclusions:

  • All twelve concepts mentioned in Article 2 TEU – not just the first six, as typically assumed – seem to be equally-binding values (I);
  • At first glance, the Court decisively clarifies or even defines the content of seven Article 2 values. On this reading, the rule of law is open-textured and supercharged. Conversely, six other values (human dignity, freedom, equality, respect for human rights, non-discrimination and equality between women and men) are emaciated: they are defined by a small cluster of Charter rights and TFEU provisions (II); but
  • On closer analysis, there are powerful reasons for rejecting that reading of the six other values. The better view is that this is a non-exhaustive first step in clarifying them (III).

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