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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ECJ confirms Validity of the Rule of Law Conditionality Regulation

On 16 February 2022, the ECJ delivered a highly important ruling on the rule of law conditionality regulation in the two cases of Hungary v Parliament and Council (C-156/21) and Poland v Parliament and Council (C-157/21). The judgement was eagerly awaited and received a lot of attention. The ECJ fully dismissed Hungary’s and Poland’s actions for annulment against the general regime of conditionality for the protection of the European Union (EU) budget provided by the Regulation (EU, Euratom) 2020/2092 (hereinafter: Regulation; as analysed here). The said Regulation allows the EU to cut funds awarded to Member States in case of an established violation of the rule of law by those States, if this violation endangers the EU budget. In its judgement, the ECJ held that the Regulation was adopted on an appropriate legal basis and is compatible with the procedure laid down in Article 7 TEU. Moreover, it is consistent with the limits of the EU’s competences and fully in line with the principle of legal certainty. As expected, the ECJ thus followed the Opinion of the Advocate General Manuel Campos Sánchez-Bordona of 2 December 2021 (C-156/21 and C-157/21, as analysed here). The legality of the Regulation is now definite, which provides the EU with a new tool to sanction violations of the rule of law by its Member States.


For some time now, the EU has been confronted with violations of the rule of law by its Member States, especially by Hungary and Poland. These violations have also been confirmed in recent ECJ rulings (see inter alia C-824/18, A.B. and othersC-791/19, Commission v Poland (Disciplinary Chamber); C-564/19, IS). In Hungary, particularly the rights of refugees, the opposition of the current government, and the press are restricted. Poland is especially criticised for its judicial reform and the Disciplinary Chamber of the Supreme Court, which can waive the immunity of judges. The ECtHR also recently dealt with those issues: In a judgment of 3 February 2022 (ECtHR, application no. 1469/20, Case of Advance Pharma sp. z o.o v. Poland), the ECtHR found that the Polish Supreme Court did not meet the requirements of Article 6 ECHR (right to a fair trial). On 8 February 2022, the ECtHR asked Poland in an interim measure to ensure that no decision in respect of the immunity of a judge may be taken by the Disciplinary Chamber until the final determination of the complaints by the ECtHR (ECTHR, application no. 6904/22, Case Wróbel v Poland). Furthermore, in October 2021, the Polish Constitutional Court issued a highly criticised ruling declaring some provisions of the EU Treaty unconstitutional (Trybunał Konstytucyjny, K 3/21, as analysed here). This case law blatantly violates fundamental principles of EU law. Hungary and Poland are also subject to rule of law proceedings under Article 7 TEU for alleged disregard of fundamental EU values.

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Protecting Ukrainians fleeing to the EU … but for how long?

Two million people have already fled across the EU’s eastern border since the start of the Russian invasion of Ukraine and the numbers of refugees who continue to flee suggest that the total numbers could rise to multiple millions. It is already now the biggest refugee movement in Europe since the Second World War. EU Member States are committed under international and EU law to offer protection to people fleeing the conflict in Ukraine. This is not in doubt. Rather, the immediate issues are: (1) who benefits from the EU’s protection? (2) how is the burden of these large numbers of refugees shared? The EU’s swift response is the activation of a little-known, little-regarded and never-used law to provide those fleeing the war in Ukraine ‘temporary protection’. It is the right law at this time, but, shortly, the protection of refugees from Ukraine is likely to become a contested issue. These matters are considered in this blog post.

EU Temporary Protection – a résumé

The Temporary Protection Directive (TPD) was the first-ever EU harmonising measure adopted in the area of asylum law. The experiences of the Member States hosting Bosnians and to a lesser extent also Kosovans under temporary protection measures in 1990s following the break-up of Yugoslavia shaped this legislation. Since its adoption in 2001, the Common European Asylum System (CEAS) has evolved but temporary protection had largely fallen out of favour.

Temporary protection has its critics. It is considered by some a weak and precarious form of international protection, at best. Some have also, not without reason, accused states of relying on it to avoid commitments to international protection, notably under the 1951 Refugee Convention. However, some of this criticism has been at cross purposes. Temporary protection is indeed offered in some parts of the world as the only basis for protection of refugees and, in these states, it may be considered a weaker and precarious form of protection. Temporary protection in the EU has however evolved into primarily an emergency process to manage a mass influx. The point of it is to enable immediate protection to refugees en masse and to avoid overwhelming asylum systems through hundreds of thousands, maybe even millions of individual applications for protection.

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The first CJEU decision on domestic workers: the role of EU equality law in challenging unjustified exclusions from labour rights and social protections

1. Introduction

On 24 February 2022, the CJEU issued its first judgment on domestic workers. In case C-389/20, TGSS (Chômage des employés de maison), the CJEU held that the exclusion of this category of workers from access to social security benefits constitutes indirect discrimination on the ground of sex, since it affects almost exclusively women.

Domestic workers have long constituted an invisible and rather underexplored category of workers within labour law scholarship and policy-making, which has only recently gained some attention in the wake of the adoption of the historic ILO Domestic Workers Convention No. 189 in 2011. Whereas a part of the scholarship has noticed that EU equality law could be used to challenge the long-standing exclusions of domestic workers from national labour law and social security system (see, notably, the contribution of Vera Pavlou, and the work of Nuria Ramos-Martin, Ana Munoz-Ruiz & Niels Jansen in the context of the PSH-Quality project), the issue has never reached the Court of Justice up to now.

With a decision that will become a landmark for domestic workers’ rights in the EU, the Court confirms the untapped potential of EU law in promoting domestic workers’ full coverage under labour law and social security systems, which will have significant implications in the promotion of domestic workers’ rights across the Union.

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The Proposed EU Regulation on Political Advertising Has Good Intentions, But Too Wide a Scope

In November 2021, the Commission put forward a proposal for regulating various political advertising techniques including targeting. This proposed regulation on the transparency of political advertising is currently being discussed in the national parliaments of the Member States as well as by the EU co-legislators. The primary objective of the proposal is to establish harmonised rules and a high level of transparency for political advertising in the EU. The second objective is to promote the protection of personal data by laying down rules on targeting and amplification techniques in political advertising. These rules would apply to all data controllers using targeting and amplification techniques, and not only to political advertising companies. 

There are several interesting elements to unpack in the Commission’s proposal. In this post, I will concentrate on two: (1) how the proposed regulation may affect the right to freedom of expression (Article 11 CFREU) and (2) the legal basis for such a regulation.Continue reading