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

The EU’s Economic Response to the COVID-19 Pandemic: Preliminary Remarks

Introduction

The COVID-19 pandemic has, undoubtedly, been one of the greatest challenges humanity has faced in the last century. To date, there have been over 14 million confirmed cases, over 3 million confirmed deaths, and 223 countries affected. In addition to this overwhelmingly tragic health crisis however, the pandemic – or better, the measures assumed by governments around the world to contain it – have  a devastating social and economic crisis. For the European Union, this has been the second major socio-economic crisis within just a decade, the first being the Eurozone financial crisis that began in 2010 and eventually resulted in a change of its institutional modus operandi. Similar to the Eurozone crisis, the pandemic has arguably posed both an existential threat but also an opportunity for economic governance within the EU. This opportunity has become much clearer, considering the speed with which the EU has responded to this crisis as well as the arguably fundamental changes this response has led to, not just in the institutional structure of the EU, but it’s overall purpose. This post aims to overview the specific measures  of the Union’s economic response to the pandemic and provide a preliminary analysis.Continue reading

European integration with responsibility in the CETA case

On 2 March 2021, the German Constitutional Court (GCC) rejected an application by the Left-wing parliamentary group DIE LINKE (‘The Left’) as inadmissible. The Left group had filed a complaint against a statement made by the Bundestag (the German Parliament) on 22 September 2016. It argued that the Parliament had failed to give constitutive consent to CETA’s provisional application through a formal mandate law. CETA stands for Comprehensive Economic and Trade Agreement and is a free trade agreement between the EU and Canada that contains numerous trade and customs facilitations. As a new-generation trade agreement, it contains many rules for reducing non-tariff trade barriers. The Left rejects such agreements because they will allegedly “drag down rules on environmental, consumer and worker protection in the interests of corporate interests.” The Left Party understands a “formal mandate law,” or formal consent, to be a formal parliamentary law that prescribes to the federal government how it must behave in such trade negotiations and in the vote in the Council of the EU. In its CETA ruling, the GCC has now concretised the German Parliament’s so-called responsibility for European integration once again.

Mandate law instead of statement?

In its opinion of 22 September 2016, the Bundestag had called on the German Federal Government to advance CETA as a mixed agreement between the EU, the Member States and Canada and to agree on exceptions to a provisional application, especially in investment protection. The Bundestag had also instructed the German government to inform itself early and comprehensively about further developments connected with the free trade agreement. However, the Left group believed the Parliament had failed to fulfil sufficiently its responsibility for European integration. The meaning of this responsibility is outlined in the following section. Instead, according to the Left group, the Bundestag should have adopted a formal “mandate law“ to allow the German representative in the Council of the European Union to approve the provisional application of CETA and give it concrete guidelines in this regard. The Left group believed that the Bundestag’s responsibility for European integration had been condensed into a concrete duty to ensure that ultra vires actions and violations of constitutional identity did not take place. In the opinion of the Left Party, the Bundestag is obliged to issue a formal consent, i.e. a legal authorization or instruction to the German representative in the Council of the European Union, which can legitimize the use of sovereign rights by the European Union. This obligation should follow from Article 23 Grundgesetz (‘GG’, German Basic Law). But the Left group’s complaint remained vague about how a mandate law would serve to “constitutively limit” and “democratically pre-structure” the CETA agreement.

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EBA and Game of Thrones: A Match Made in Luxembourg

Is there an unwritten rule mandating that we read all Advocate Generals’ Opinions opening with a quote from the Game of Thrones (GoT)? If not, it is high time we adopted one.

‘What is dead may never die’. Opening with this line from the popular show, AG Bobek is alluding to an important EU law question: can the ECJ invalidate a soft law act, i.e. a non-binding EU measure, under the preliminary reference procedure of Article 267 TFEU? If not, can the Court provide (binding) interpretation of such a measure?

In his Opinion in Case C-911/19 FBF v ACPR, published on April 15th, the AG offered his own answers to these thorny questions. In this post, the background to the case will initially be set out. The key legal issues that arise will then be dissected, and the AG’s findings will be critically assessed.

Factual background 

The facts of the case, as presented by the AG and summarised in the Court’s press release, are relatively straightforward. In 2017, the European Banking Authority (‘EBA’) issued Guidelines on product oversight and governance arrangements for retail banking products. Thereafter, the French Autorité de contrôle prudentiel et de résolution (Authority for Prudential Supervision and Resolution) (‘ACPR’) announced in a notice that it complied with those guidelines, thus making them applicable to all financial institutions under its supervision. The Fédération bancaire française (French Banking Federation; ‘FBF’) sought the annulment of that notice before the referring court, claiming that the EBA did not have the power to adopt those guidelines. In other words, French banks are “attacking” the notice of the French supervisory authority by going after its source of inspiration, i.e. the EBA’s guidelines, and claiming that the latter should be annulled as being ultra vires.

Key legal issues

In a nutshell, three main questions arise from an EU law perspective. Firstly, did the EBA, by adopting the disputed guidelines, go beyond the scope of its powers under Regulation No 1093/2010? Secondly, if yes, what should the consequence be? Is the Court able to declare a non-binding measure invalid under the preliminary reference procedure (Art. 267 TFEU), even though it is not able to do so following an action for annulment (Art. 263 TFEU)? Thirdly, and finally, if national law, contrary to EU law, allows for broader access to direct judicial review of soft-law measures (including national acts ‘implementing’ non-binding EU-law acts), is the national court obliged to refer questions regarding the validity of non-binding EU measures like EBA’s Guidelines, or can it simply annul the national implementing measure on its own?Continue reading

Pre-Market Requirements, Prior Authorisation and Lex Specialis: Novelties and Logic in the Facial Recognition-Related Provisions of the Draft AI Regulation

The draft Artificial Intelligence Regulation proposed by the European Commission on 21 April 2021 was eagerly anticipated. Its provisions on facial recognition to an even greater degree, given the heated debate going on in the background between those who support a general ban of this technology in public spaces and those who consider that it has “a lot to offer as a tool for enhancing public security” provided that rigorous red lines, safeguards and standards are introduced. NGOs (such as those who support the “Reclaim Your Face” campaign) and political groups (such as the Greens) have been calling for a total ban of “biometric mass surveillance systems in public spaces”. Contrary to these calls, in their submissions to the public consultation on the White paper, some countries (e.g. France, Finland, the Czech Republic and Denmark) claimed that the use of facial recognition in public spaces is justified for important public security reasons provided that strict legal conditions and safeguards are met (see the Impact Assessment Study, at 18). The results of the public consultation on the White Paper on AI are mixed on the issue of the ban (see here, at 11), but an overwhelming majority of respondents are clearly calling for new rules in this field.

Whilst the idea of a complete ban has been rejected (as we will discuss later in this paper), leading to reactions of the European Data Protection Supervisor (EDPS) and NGOs, the Commission’s draft Regulation attempts to deliver on the idea of introducing new rules for what it calls “remote biometric identification” (RBI)[i] systems, which include both facial recognition but also other systems for processing biometric data for identification purposes such as gait or voice recognition.

The objective of this paper is to present the basic features of this proposed set of rules; to decipher the “novelties” among these when compared with existing rules related to the processing of biometric data, especially Article 9 of the General Data Protection Regulation (GDPR) and Article 10 of the Law Enforcement Directive (LED); and to explain the logic behind the new mechanisms and constraints that have been introduced. Part 1 of this paper includes a table that we have produced in order to enable an understanding of the facial-recognition-related provisions of the draft AI Regulation “at a glance”. Part 2 focuses on the rules proposed in the draft to regulate the use of RBI in publicly accessible spaces for the purpose of law enforcement.

The analysis below is based on certain highlights of a first high level discussion on this topic organised on April 26, 2021 by the Chair on the Legal and Regulatory Implications of Artificial Intelligence (MIAI@Grenoble Alpes), with the cooperation of Microsoft. The workshop, which was held under Chatham House rules, included representatives of three different directorates-general of the European Commission (DG-Connect, DG-Just and DG-Home), the UK Surveillance Camera Commissioner, members of the EU Agency for Fundamental Rights (FRA) and Data Protection Authorities (CNIL), members of Europol and police departments in Europe, members of the European and the French Parliaments, representatives of civil society and business organisations, and several academics. A detailed report of this workshop and a list of attendees will be published in the coming days on AI-Regulation.Com, where we have already also posted the materials distributed during this workshop that could be very useful for the readers of this blog.

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Green light from Karlsruhe for the ratification of new EU own resources decision. First fractures in the prohibition of fiscal integration?

Background facts

 With a decision issued on the 15th April 2021, the German Federal Constitutional Court (GFCC) declined the request for preliminary injunction against the promulgation of the domestic act ratifying the 2020 Own Resources Decision (ORD), on which the activation of Next Generation EU (NGEU) depends. Once the remaining Member States complete the ratification process in accordance with by art. 311 TFEU, the Union will finally be allowed to collect resources on the market to reinforce its budget and develop a recovery plan for Europe in the aftermath of the COVID-19 pandemic. While the decision of the Court brings great relief to those who believe that NGEU represents a turning point in the process of European integration, the outcome wasn’t something expected due to the well-known hostility of the GFCC towards any form of fiscal integration in the Union.

As noticed by Benedikt Riedl in a recent post published on this blog, the real issue  the Court has been called  to consider in the case is whether authorising the Commission to borrow up to € 750 billion on capital markets on behalf of the EU and repay it by the 31st December 2058 may pave the way to the establishment of a fiscal union, where Member States and their citizens are mutually responsible for financial obligations taken by the European institutions. From the point of view of the German constitutional law this might represent a violation of the Bundestag’s overall budgetary responsibility, which is part of the Basic Law’s constitutional identity and guarantees citizen’s right to democratic self-determination. The applicants raised two arguments to prove such violation. On the one hand, the 2020 ORD authorises the European Commission under certain conditions to make additional calls on the Member States to provide financing, thus causing unforeseeable budgetary burdens on the German budget without prior constitutive approval by Parliament. At the same time, the 2020 ORD would consist of an ultra vires act, as it infringes the EU Treaties, in particular the prohibition of bailout (article 125 (1) TFEU) and rules on the amendment of the ORD (article 311 (3) TFEU). Sticking to the consolidated case law of the GFCC (as Riedl does) there are sufficient grounds to believe that the complaints of the applicants are founded, even in an emergency procedure. Yet, this time the Court has gone in the opposition direction, by authorising the promulgation of the act ratifying the ORD. While the decision only deals with the application for preliminary injunction, it presents some arguments which might also help the solution of the principal proceeding.

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