Opinion 1/20 and the modernisation effort of the Energy Charter Treaty

On 16 June the Court found Belgium’s request for an Opinion pursuant Article 218 (11) TFEU on the compatibility of Article 26 of the ‘modernised’ Energy Charter Treaty (ECT) inadmissible on grounds that it did not have ‘sufficient information’ on its envisaged provisions. Article 26 is the provision that allows foreign investors to have recourse to investor-state dispute settlement (ISDS) when their investments are negatively affected by government action in breach of the substantive provisions of the ECT. While the modernisation process did not foresee any changes to Article 26 ECT and at the time of the opinion there was no public information available that parties may do so, the Court speculated that the parties may change their positions and that it therefore did not have ‘sufficient information’. No less than 12 days later, an agreement in principle was reached by the contracting parties of the ECT to amend the ECT that inter alia introduced a so-called disconnection clause (a clause that would make part of the ECT inapplicable between EU Member States). This post will offer commentary on the Court’s interpretation of the Opinion procedure (Article 218 (11) TFEU) in the wake of ongoing negotiations to ‘modernise’ the ECT and offer some thoughts on the outcome of the negotiations themselves from the perspective of climate change mitigation efforts. It will start with a brief introduction to why Belgium requested this Opinion, outline the rationale of the Opinion procedure, and subsequently discuss the ruling of the Court. It will end with a brief discussion with the current efforts to ‘modernise’ the ECT and its relationship with efforts to mitigate climate change.  Continue reading

Convenient, but controversial: Why the European Defence Fund should not be expanded as the Commission becomes ‘geopolitical’

In the wake of the Russian military invasion of Ukraine, the European Council called for the EU to play a larger role in coordinating Member States’ military and defence policies. This call falls within a period in which the Commission is actively striving to become, in the words of President von der Leyen, ‘a geopolitical Commission’. Arguably the most significant development in this regard has been the launch of the European Defence Fund (EDF) in 2021. Logically, since it is already up and running, the EDF is viewed as a policy instrument which could potentially facilitate a further expansion of the EU’s role in directing defence policy, and a practical mechanism for dealing with inflated defence budgets. Most prominently, the Commission itself suggested in May this year that it will ‘consider strengthening [the EDF’s] budget.’ This blogpost argues that the specific features of the Fund, which are the result of a rather controversial history, make the EDF unsuitable for further expansion, and raises more fundamental questions about the Commission’s ability to function in the area of defence without being overly reliant on the European arms industry.Continue reading

States as platforms under new EU (online platforms’) law

The recent political agreement on the Digital Services Act (the “DSA”) means that, once officially released, it will formally introduce into EU law the term “online platforms”: These (according to the Commission’s original proposal, at least) are meant to be “a provider of a hosting service which, at the request of a recipient of the service, stores and disseminates to the public information” (art. 2, point (h) of the DSA), whereby a hosting service, in turn, “consists of the storage of information provided by, and at the request of, a recipient of the service” (point f). Therefore, between the DSA and the Digital Markets Act (the “DMA”), that has also been recently finalised, a comprehensive framework for the regulation of online platforms is introduced in EU law, the first of its kind both in Europe and internationally.

What if, however, this framework was applied to states themselves? What if states fell within the definition of an online platform within this context?

1.   What is an online platform (in EU law)?

Platforms is a term that only recently entered forcefully not only the EU legislator’s but also general vocabulary: indicatively, Google trends indicate that interest was fairly low from 2004 until 2014 but has spiked since.

There is some repetition in the Commission’s definition: as seen, a “hosting service” is already defined in point (f), there is therefore no need to repeat “which, at the request of a recipient of the service, stores“. Accordingly, the “recipient of a service” is “any natural or legal person who uses the relevant intermediary service” (point (b). Consequently, leaving aside the part of the definition of an explanatory nature (“unless that activity is a minor and purely ancillary feature of another service and, for objective and technical reasons cannot be used without that other service, and the integration of the feature into the other service is not a means to circumvent the applicability of this Regulation”), the definition should read: online platforms store and disseminate to the public information at the request of their users. The digital, online environment is implied.

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Clarifying the Court’s judgment in Préfet du Gers on UK nationals’ voting rights in local elections in the EU post-Brexit

On 9 June 2022, the Court of Justice delivered another Brexit-related ruling in Case C-673/20 Préfet du Gers and Institut national de la statistique et des études économiques concerning the EU-UK Withdrawal Agreement. The Agreement covers in particular the residence and social rights of the UK nationals resident in the EU and EU citizens resident in the UK. However, Brexit also affected the wider scope of EU citizenship rights, e.g. the voting rights of the UK nationals residing in the EU and vice-versa. The Court had to address the question whether these rights are protected by the Withdrawal Agreement, and if not, what is the impact on its validity. The Court found that following the loss of EU citizenship the UK nationals have lost their voting rights in local elections, and these are not protected by the Withdrawal Agreement. However, the judgment provoked various alarming media reactions that do not reflect reality and should be clarified.

Facts of the case

A British national, EP, resident in France since 1984, was removed from the municipal electoral roll. She challenged this removal before the referring French court, claiming that she was deprived of her active and passive voting rights in local elections in both the UK and France. Whilst the loss of the voting rights in the UK elections was the result of the domestic legislation preventing the UK nationals living for fifteen years abroad from exercising them, the removal from the French electoral roll was based on UK Withdrawal from the EU and the loss of EU citizenship. The French court, in essence, referred the following questions to the Court of Justice:

  1. Have UK nationals, who were settled in the EU before the end of the transition period, lost their EU citizenship status and the rights stemmed therefrom, or do they retain such rights based on the Withdrawal Agreement?
  2. If such UK nationals are not able to retain their EU citizenship rights based on the EU-UK Withdrawal Agreement, does the Agreement infringe Articles 18, 20, and 21 TFEU and 39 and 40 of the Charter of Fundamental Rights, and further the principle of proportionality?

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The (dual) primary mandate of the European Central Bank: between inflation and eurozone survival


Inflation is affecting the whole world and the European Union (EU) is no exception. Following the lead of the Bank of England and the US Federal Reserve, the European Central Bank (ECB) recently decided  to address this issue. However, as I will endeavour to explain, the decision seems contradictory in its terms since it has prompted a change in monetary policy in order to tackle inflation while also committing to continue purchasing of governmental bonds of some Member States, which arguably fosters inflation.

This contradiction highlights the vertical nature of the monetary union, in that the central bank’s policy-making seems very much tailored to its Member States on an individual basis, instead of focusing on eurozone-wide indicators. This state of affairs is difficult, if not impossible, to reconcile with the EU Treaties in their current form. Moreover, it can also put into question the effectiveness of the EU economic governance framework developed since the sovereign debt crisis.

Relevant facts

In the press release following the Governing Council’s meeting of 9 June 2022, the ECB stated that, in May, inflation again rose significantly, to an annual rate of 6.8%, mainly because of surging energy and food prices, including the impact of Russian invasion of Ukraine.

Nevertheless, the ECB acknowledges that ‘inflation pressures have broadened and intensified, with prices for many goods and services increasing strongly’, which is projected to ‘remain undesirably elevated for some time’. These pressures are expected to subside in a context of future moderating energy costs, easing of supply chain disruptions and normalisation of monetary policy, which entails gradually ceasing quantitative easing.

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The Data Act or the final piece to create a comprehensive legal framework for international transfers of data

With the Data Act proposal the European Commission introduces new rules to govern international transfers of and access to non-personal data protected by IP and trade secrets held by cloud services providers, upon request by non-EU/EEA governments (Article 27). Following the Data Governance Act (Articles 5 and 30)*, this constitutes the final piece to elaborate a comprehensive legal framework for international transfers of data, which builds on the GDPR rules (Chapter V). Against this background, this post aims to present the future EU regulatory landscape in relation to international transfers of data. While it exposes the rationale behind these new rules, it also points out potential legal interoperability issues.  Continue reading

The Amended Motor Vehicle Insurance Directive: Stalling Third-Party Rights

The law on compulsory motor vehicle insurance has been driving forwards for decades. With each iteration of the Motor Vehicle Insurance Directive (MVID), along with the Court of Justice’s rulings which expanded their protective reach, third-party victims of motor vehicle accidents were furnished with greater rights, remedies, and access to compensatory redress across the EU. Perhaps the most controversial decision of the ECJ during this time came in 2014 in Vnuk v Zavarovalnica Triglav. (In)famously, in Vnuk and its progeny of cases the ECJ interpreted the MVID as applying to vehicles on public and private land, where the vehicle was being used according to its normal function. The result of the expanded case law was concern expressed from Member States, national compensatory bodies and other interested organisations (such as the motorsport industry) that the law had been applied too broadly and was placing onto these bodies and their members an unreasonable burden. Following a consultation exercise by the EU Commission, Directive 2021/2118 was enacted which amended the law, reversing the decision in Vnuk but also limiting rights for third-party victims of motor accidents in unexpected ways. In this blog post, we provide an overview of the law and present a critical examination of the amending Directive. Continue reading

Green light or white flag? The European Commission’s endorsement of the Polish recovery plan and its implications for the rule of law crisis

Last week, the European Commission signalled that it would give green light to Poland’s recovery and resilience plan under the Next Generation EU program. On the one hand, this may have significant financial implications for Poland. The Commission’s approval is likely to lead to the unlocking of billions in support of the country’s economy revving up after turmoil caused by Covid-19. On the other hand, the Commission’s go-ahead equally marks an important development in relation to the rule of law crisis in Poland. It suggests that the abandoning of some of the most contested elements of judicial reforms is good enough for the Commission. In unsettling times, Berlaymont seems eager to lay its quarrel with Poland to rest.

At first sight, this may be extolled as a long-overdue amicable solution between Warsaw and Brussels. However, this would be too good to be true. In fact, as Jaraczewski argues, the Polish lawmakers’ conciliation is likely to be nothing but a feint. This blog post agrees with this impression. It suggests that the Polish ruling parties’ approach ties in neatly with a strategy of legalistic law-making that has marked the interaction of EU institutions and national lawmakers for years. The latter may often take pride in finding clever legal workarounds that accommodate requirements of Union law, without abandoning an illiberal policy altogether.Continue reading